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Ninth Circuit Affirms Dismissal of CIPA and Wiretap Act Claims Against Celebrity Platform

By Wentao Yang, Matthew Verdin & Kathryn Cahoy on March 6, 2025
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A fan of celebrity LL Cool J filed a wiretapping suit against Community.com (“Community”), claiming that Community accessed her text message to LL Cool J in violation of the federal Wiretap Act and the California Invasion of Privacy Act (“CIPA”).  In an unpublished opinion highlighting that Section 632 of CIPA does not protect communications that are by nature a recorded medium, the Ninth Circuit affirmed dismissal of the plaintiff’s claims. See Boulton v. Community.com, Inc., No. 23-3145, 2025 WL 314813 (9th Cir. Jan. 28, 2025).

Community’s platform allegedly operates by providing “Community” phone numbers to celebrities, such as LL Cool J, who can then share the Community numbers with fans.  Plaintiff Cyndy Boulton texted LL Cool J’s Community phone number, which she allegedly believed to be the celebrity’s personal phone number.  As it turned out, according to plaintiff, her text message was sent to Community, which sent an automated response requesting that she sign up for the Community platform to communicate with LL Cool J.  Plaintiff brought a putative class action against Community, asserting that Community unlawfully wiretapped her communications with LL Cool J in violation of the federal Wiretap Act and CIPA.

The Ninth Circuit affirmed the district court’s dismissal of each of the plaintiff’s claims on the following grounds:

  • No Confidential Communication Under CIPA § 632: The Ninth Circuit held that Boulton’s text message is not a “confidential communication” protected by Section 632 CIPA.  A “confidential communication” is statutorily defined to exclude a communication made in “any . . . circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”  Cal. Penal Code § 632(c).  Since the plaintiff’s “text messages are by nature recorded,” the Ninth Circuit held that her text “was not a ‘confidential communication’ protected by § 632.”  As the Ninth Circuit explained, this conclusion is consistent with decisions by “California appellate courts [that] have held that the exclusion can apply to internet chat messages.”
  • No Acquisition In Transit Under Federal Wiretap Act and CIPA § 631: The Ninth Circuit held that the plaintiff also failed to allege that her text message was accessed “during transmission” or “in transit,” as required under the federal Wiretap Act and Section 631 of CIPA.  Rather, “the only logical conclusion from the facts alleged in her complaint is that she texted a Community number and the text was received at that number” by Community.  In reaching this conclusion, the Ninth Circuit reaffirmed settled precedent requiring plaintiffs asserting claims under these provisions to allege that a communication was “acquired during transmission, not while it is in electronic storage.”
  • No Transmission Between Telephones Under CIPA § 632.7: Finally, the Ninth Circuit affirmed dismissal of the plaintiff’s remaining claim under Section 632.7 of CIPA, because the plaintiff “has not alleged that her text to LL Cool J was a transmission between two telephones as plainly required by the statute.”  Instead, the plaintiff alleged only that “she texted LL Cool J’s Community number and that Community is a ‘social media platform,’” and she therefore “cannot allege that her text was received by a phone.”

This decision illustrates important defenses available to companies facing wiretapping claims under the federal Wiretap Act and CIPA.

Wentao Yang

Wentao Yang is an associate in the Washington, DC office. He is a member of the White Collar Defense and Investigations and Transportation Practice Groups.

Wentao maintains an active pro bono practice, with experience in the areas of immigration and criminal justice.

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Photo of Matthew Verdin Matthew Verdin

Matthew Verdin focuses on defending clients in the technology and financial services sectors. He has a strong record of delivering wins on behalf of clients in class actions and complex litigation, particularly in privacy and consumer protection lawsuits. Matthew is particularly successful in…

Matthew Verdin focuses on defending clients in the technology and financial services sectors. He has a strong record of delivering wins on behalf of clients in class actions and complex litigation, particularly in privacy and consumer protection lawsuits. Matthew is particularly successful in securing dismissals at the pleadings stage. For example, he won dismissal at the pleadings stage of over a dozen wiretapping class actions involving the alleged use of website analytics tools to collect data about users’ website visits. He also advises companies on managing litigation risk under federal and state wiretapping laws.

Matthew is also dedicated to pro bono legal services. Recently, he helped a domestic violence survivor win a case in the California Court of Appeal. Matthew’s oral argument led to the court ordering renewal of his client’s restraining order just one day later.

Read more about Matthew VerdinEmail
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Photo of Kathryn Cahoy Kathryn Cahoy

Kate Cahoy co-chairs the firm’s Class Actions Litigation Practice Group and serves on the leadership committee for the firm’s Technology Industry Group. She defends clients in complex, high-stakes class action disputes and has achieved significant victories across various industries, including technology, entertainment, consumer…

Kate Cahoy co-chairs the firm’s Class Actions Litigation Practice Group and serves on the leadership committee for the firm’s Technology Industry Group. She defends clients in complex, high-stakes class action disputes and has achieved significant victories across various industries, including technology, entertainment, consumer products, and financial services. Kate has also played a key role in developing the firm’s mass arbitration defense practice. She regularly advises companies on the risks associated with mass arbitration and has a proven track record of successfully defending clients against these challenges.

Leveraging her success in class action litigation and arbitration, Kate helps clients develop strategic and innovative solutions to their most challenging legal issues. She has extensive experience litigating cases brought under California’s Section 17200 and other consumer protection, competition, and privacy laws, including the Sherman Act, California Consumer Privacy Act (CCPA), California Invasion of Privacy Act (CIPA), Wiretap Act, Stored Communications Act, Children’s Online Privacy Protection Act (COPPA), Video Privacy Protection Act (VPPA), along with common law and constitutional rights of privacy, among others.

Recent Successes:

Represented Meta (formerly Facebook) in a putative nationwide advertiser class action alleging violations under the California Unfair Competition Law (UCL) related to charges from allegedly “fake” accounts. Successfully narrowed claims at the pleadings stage, defeated class certification, opposed a Rule 23(f) petition, won summary judgment, and defended the victory on appeal to the Ninth Circuit. The Daily Journal selected Covington’s defense of Meta as one of its 2021 Top Verdicts, and Law.com recognized Kate as a Litigator of the Week Shoutout.
Defeated a landmark class action lawsuit against Microsoft and OpenAI contending that the defendants scraped data from the internet for training generative AI services and incorporated data from users’ prompts, allegedly in violation of CIPA, the Computer Fraud and Abuse Act (CFAA), and other privacy and consumer protection laws.

Kate regularly contributes to the firm’s blog, Inside Class Actions, and was recently featured in a Litigation Daily interview titled “Where Privacy Laws and Litigation Trends Collide.” In recognition of her achievements in privacy and antitrust class action litigation, the Daily Journal named her as one of their Top Antitrust Lawyers (2024), Top Cyber Lawyers (2022), and Top Women Lawyers in California (2023). Additionally, she received the Women of Influence award from the Silicon Valley Business Journal and was recognized by Daily Journal as a Top Attorney Under 40.

Read more about Kathryn CahoyEmail
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  • Posted in:
    Class Action & Mass Torts
  • Blog:
    Inside Class Actions
  • Organization:
    Covington & Burling LLP
  • Article: View Original Source

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