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Arbitrator Rejects Website Wiretapping Claims After Hearing

By Jordan Joachim on January 26, 2026
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In a recently published award, an arbitrator rejected claims that Dick’s Sporting Goods, Inc. (“Dick’s”) violated the Federal Wiretap Act and the California Invasion of Privacy Act (“CIPA”) by purportedly installing website analytics and marketing technologies on its website after an evidentiary hearing.  Asad v. Dick’s Sporting Goods, Inc., JAMS Ref. No. 5220005532 (Dec. 8, 2025).

In 2022, the Claimant, Sandy Asad, filed a putative class action in federal court against Dick’s asserting claims under the Federal Wiretap Act and CIPA.  Asad v. Dick’s Sporting Goods, Inc., No. 22-cv-09366 (C.D. Cal.).  After Dick’s moved to compel arbitration, the Claimant agreed to stay the lawsuit and submit her claims to arbitration under the JAMS rules.  

In the arbitration, the Claimant asserted that Dick’s installed multiple technologies on its website, including “session replay” software and pixels, which allegedly captured and transmitted to third parties her browsing activity while on the website.  After an evidentiary hearing, the arbitrator concluded that the Claimant’s claims failed on two independent grounds.   

First, the arbitrator concluded that “Claimant failed to prove that any of her communications were ‘intercepted’ while the communications were in transit between Claimant and Respondent,” as required under the Federal Wiretap Act and CIPA.  Although Claimant’s expert testified that the alleged communications were intercepted at a “terminus or ‘gateway,’” this testimony was “effectively rebutted” by Respondent’s expert witness, who established that “each communication [from the technologies] was in electronic storage before the next occurred.”

Second, the arbitrator concluded that both Dick’s and the Claimant consented to any interception of their communications.  The arbitrator found that Claimant consented “based on her testimony regarding her use of the site, the prominence of the Privacy Policies, and her constructive notice.” 

The award highlights the important role witnesses and experts can play in defending against wiretap claims.  The arbitrator commented on the persuasiveness of Respondent’s witnesses and expert and ultimately adopted their account as to “how the Technologies operate on the Website.”  In comparison, the arbitrator noted that the expert testimony offered by Claimant was “generic” and “did not enable Claimant to meet her burden of proof.”

Photo of Jordan Joachim Jordan Joachim

Jordan Joachim is an experienced litigator who helps clients navigate complex class actions and business disputes.

Jordan specializes in high-stakes class action and commercial litigation. He works with leading companies across a range of industries, including technology, financial services, life sciences, energy, and…

Jordan Joachim is an experienced litigator who helps clients navigate complex class actions and business disputes.

Jordan specializes in high-stakes class action and commercial litigation. He works with leading companies across a range of industries, including technology, financial services, life sciences, energy, and media. He has litigated cases in federal and state courts across the country, from case inception through trial and appeal. Jordan is a stand-up litigator, with experience arguing dispositive motions and examining witnesses at trial.

His class action practice encompasses privacy, securities, and consumer protection matters. He has extensive experience defending companies against putative class actions asserting claims under the federal Wiretap Act, California Invasion of Privacy Act (CIPA), Video Privacy Protection Act (VPPA), New York General Business Law (GBL), Securities Exchange Act, and other federal and state statutes, as well as common law claims.

His commercial litigation practice encompasses business and shareholder disputes involving claims for breach of contract, business torts, and breach of fiduciary duty, among others. He has extensive experience litigating cases arising out of corporate transactions and financial instruments, including disputes involving M&A agreements, earn-out/milestone provisions, letters of credit, indemnification, and insurance coverage.

Jordan also regularly advises clients on risks relating to federal and state wiretapping laws, privacy claims, mass arbitration, securities fraud, breach of contract, corporate governance, and other issues.

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  • Posted in:
    Privacy and Cybersecurity
  • Blog:
    Inside Class Actions
  • Organization:
    Covington & Burling LLP
  • Article: View Original Source

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