• by Ray Schultz , Columnist, May 8, 2025

Email marketers won a legal victory last month when a federal judge threw out a class-action suit that accused a California retailer of collecting information through email tracking pixels. 

The defendant, Pacific Sunwear of California, ‘is not a “communication service provider” as that term is understood within the statutory framework,” wrote U.S. District Judge John J. Tuchi of the U.S. District Court for the District of Arizona.  

What does that mean?

“Unlike telephone companies or internet service providers, Defendant is not engaged in providing a service that allows its users to send or receive electronic communications,” the judge explained. “Rather, Defendant is a clothing retailer that uses email as a method of marketing to potential customers.” 

The attempted class action suit was filed last year by an Arizona resident under the state’s Telephone, Utility and Communication Service Records Act (TUCSRA). 

The complaint alleged that Pacific Sunwear “routinely embeds its marketing emails with ‘hidden spy pixel trackers’ that allow Defendant to “capture sensitive information, including the time and place where Plaintiff and other Arizona residents open the email and what contents they clicked on.” 

The plaintiff argued that “because TUCSRA prohibits ‘any person’ from procuring a communication service record without authorization, the statute applies regardless of whether the defendant is a communication service provider.”  

The case was dismissed without oral argument. 

What does this mean to the business at large? 

The law firm of Perkins Coie writes: “This ruling is one of a handful of recent decisions holding that Arizona’s (TUCSRA) does not apply to email marketers, potentially solidifying a trend.” 

Of course, state statutes like Arizona’s might be rewritten to change that or other arguments may be applied in lawsuits. But for now, email marketers have prevailed.