Colts Fail to Score Motion to Dismiss Eavesdropping Suit

Advertising Law

Moving the chains forward for the plaintiff, an Indiana federal court judge said allegations that the Indianapolis Colts’ mobile app eavesdropped on users were sufficient to survive a motion to dismiss.

In 2012, Alan Rackemann downloaded a mobile application offered by the National Football League team that provided breaking news, game highlights, player interviews, cheerleader photographs and more. For the next four years, he used the app to follow the Colts. He also carried his smartphone on his person, taking it to places where he would not invite other people and to places where he would have private conversations.

When Rackemann later learned that the app used “beacon technology” that activated his device’s microphone to temporarily record portions of audio—even when the app is not open but running in the background of a user’s smartphone—he filed suit. He alleged the Colts, along with two audio technology development companies that partnered with the team to develop the app, ran afoul of the federal Wiretap Act by unlawfully intercepting and using his private communications.

The defendants moved to dismiss the suit, but U.S. District Court Judge Tanya Walton Pratt denied the motion.

She first determined that Rackemann had standing to bring suit, holding that he pled a cognizable injury in fact. The plaintiff premised his complaint on an invasion of his substantive interest protected by the Wiretap Act, which she said was sufficient to satisfy the standard established by Spokeo v. Robins.

In disputing the merits of Rackemann’s allegations, the defendants told the court his claims were devoid of factual details, as he did not identify any particulars about the participants, subject matter or location of any private conversations that were intercepted.

But Judge Pratt called a penalty on the Colts for attempting to apply the wrong standard. At the motion to dismiss stage, Rackemann’s statements that during the four-year period the app was installed, he carried his smartphone and took it to places where he would not invite other people and would have private conversations were sufficient in light of his allegations the app received instructions developed by the defendants to trigger the listening function on the app.

“While Rackemann may not, prior to discovery, be able to pinpoint the precise dates and times that his smartphone was activated to record, the court concludes that it may reasonably infer that at some point during a four-year period, Rackemann’s smartphone was activated while he was engaged in a private communication,” the court wrote.

The court did dismiss one of the plaintiff’s claims, albeit without prejudice. Rackemann’s allegation that the defendants “used the contents of [the intercepted] communications to [their] economic benefit, including for marketing purposes” was not enough to support a violation of the “use” provision of the Wiretap Act, the court said. If the plaintiff had additional details to support this allegation, Judge Pratt gave him 30 days to amend his complaint.

To read the order in Rackemann v. Lisnr, Inc., click here.

Why it matters: Although the court declined to dismiss the suit, Judge Pratt recognized that it was early in the litigation, as the plaintiff needed to satisfy only notice pleading requirements rather than plead his allegations in detail.