In a 10-1 decision, the 9th US Circuit Court of Appeals in San Francisco said the Canadian ecommerce company can be sued in California for collecting personal identifying data from people who buy things on websites of retailers from that state.
Brandon Briskin, a California resident, said Shopify installed tracking software known as cookies on his iPhone without his consent when he bought athletic wear from the retailer I Am Becoming, and used his data to create a profile it could sell to other merchants.
Shopify said it should not be sued in California because it operates nationwide and did not aim its conduct toward that state. The Ottawa-based company said Briskin could sue in Delaware, New York or Canada.
A lower court judge and a three-judge 9th Circuit panel had agreed the case should be dismissed, but the full appeals court said Shopify “expressly aimed” its conduct toward California.
“Shopify deliberately reached out … by knowingly installing tracking software onto unsuspecting Californians’ phones so that it could later sell the data it obtained, in a manner that was neither random, isolated, or fortuitous,” Circuit Judge Kim McLane Wardlaw wrote for the majority.
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Lawyers for Shopify and Briskin did not immediately respond to requests for comment. A bipartisan group of 30 states plus Washington, DC sided with Briskin. They said they needed an ability to enforce their own consumer protection laws against companies that avail themselves of local marketplaces through the internet.
The US Chamber of Commerce supported Shopify, saying a broad grant of jurisdiction would harm back-end service providers whose software is used worldwide.
Circuit Judge Consuelo Callahan dissented, criticizing the majority’s “traveling cookie rule” because it “impermissibly manufactures jurisdiction wherever the plaintiff goes.”
The 9th Circuit includes nine western US states, Guam and the Northern Mariana Islands.
The case is Briskin v Shopify, Inc. et al, 9th US Circuit Court of Appeals, No. 22-15815. \
