Graham

INTRODUCTION

18 Noom is a web application that helps its users lose weight and lead healthier lifestyles. Noom 19 uses FullStory’s software (called “session replay”) to record what visitors are doing on the Noom 20 website, such as their keystrokes, mouse clicks, and page scrolling, thereby allowing a full picture 21 of the user’s website interactions.1 Noom contends that the software improves its website design 22 and the user’s experience. The plaintiffs — on behalf of a putative California class — claim that 23 FullStory is illegally wiretapping their communications with Noom (and Noom is aiding and 24 25

1 First Am. Compl. (FAC) – ECF No. 27 at 2 (¶ 1 & n.1 (citing NOOM, https://www.noom.com)), 5–11 (¶¶ 18–32, 38). Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the abetting that eavesdropping) in violation of their right to privacy under California’s Invasion of Privacy Act (CIPA) and the California Constitution.2 Noom and FullStory moved to dismiss the claims, in part on the ground that FullStory — as Noom’s vendor for analyzing its website traffic — was a party to the communication (and not an …