• by Wendy Davis , Yesterday

A federal appellate court on Monday revived privacy claims by two consumers who said they entered their names, billing information and other data at ecommerce websites operated by Bass Pro Shops and Cabela's, which allegedly used "session replay" tracking code.

The ruling, issued by a three-judge panel of the 3rd Circuit Court of Appeals, dealt with lawsuits brought against the retailers by eight web users -- two of whom alleged that they made purchases and also entered payment data.

All eight claimed Bass Pro Shops and Cabela's violated laws including the federal wiretap act by using session replay code, which captures data about people's activity on websites.

U.S. District Court Judge Mark Kearney in the Eastern District of Pennsylvania dismissed all plaintiffs' claims in December 2023, ruling that they lacked "standing" because their allegations didn't establish a concrete injury.

The 3rd Circuit reversed that ruling and reinstated claims by two plaintiffs -- Heather Cornell and Peter Montecalvo -- who made purchases.

"Unlike the other six plaintiffs, Cornell and Montecalvo entered 'personal or sensitive' information when they made purchases," Circuit Judge Arianna Freeman wrote in an opinion joined by Thomas Hardiman and Cheryl Krause.

"Among other things, they entered their complete credit card or debit card numbers," Freeman continued, adding that this information "is rightly viewed as highly sensitive."

The judges said the other six plaintiffs' claims were correctly dismissed, but should not have been dismissed with prejudice. The court revised the dismissal order to read "without prejudice,"leaving those plaintiffs in a position to attempt to beef up their allegations and bring them again.