In re: BPS Direct, LLC, and Cabela’s, LLC, Wiretapping

Published by Crandall Consulting · Informational litigation intelligence · Last substantive update: October 12, 2026

Docket / citation: 23-md-3074

Summary

The memorandum addresses allegations that BPS Direct and Cabela’s used third-party session replay software to track website activity, alongside a claim concerning disclosure of a firearm purchase to Facebook. The court found the pleaded facts insufficient for Article III standing and granted dismissals with prejudice for some users and without prejudice for others, also dismissing the alternative Pennsylvania Uniform Firearms Act claim without prejudice.

Litigation Status

Status, direction, and weight describe how tracked public sources characterize this matter as of our last review — they are informational classifications, not legal assessments.

Procedural Posture

Memorandum resolving retailers’ motions to dismiss in MDL 3074 and associated district court actions.

Reported Holding

The court concluded that the website users had not pleaded facts establishing Article III standing. It dismissed claims with prejudice for users who could not plead disclosure of sensitive information after two attempts, and without prejudice for two session replay users and the Pennsylvania Facebook user who alleged purchases but not concrete injury.

What the Court Decided

The court granted the retailers’ motions to dismiss, with prejudice for some users and without prejudice for the two session replay purchasers and the Pennsylvania Facebook purchaser. It also dismissed the Facebook user’s alternative Pennsylvania Uniform Firearms Act claim without prejudice.

What the Court Did Not Decide

The excerpt does not establish a merits determination of the underlying wiretapping or common law privacy claims.

Significance

Generally viewed as defense-favorable. Characterizations of significance describe how the matter has generally been discussed in tracked public sources; individual holdings are often narrow, procedural, or fact-specific, and this page does not state or imply broader holdings than the sources support.

What This Page Does and Does Not Say

This page reports what our tracked public sources say about this matter — including, where identified, the procedural posture (for example, a ruling on a motion to dismiss is not a final merits decision). It does not report legal conclusions beyond those sources, does not predict outcomes, and does not constitute legal advice.

Technologies at Issue

• Session replay software
• Embedded JavaScript
• Keystroke and text-entry tracking
• Website navigation tracking
• Purchase disclosure to Facebook

Third parties named or identified in tracked sources: Microsoft, Quantum Metric, Mouseflow.

Statutes Invoked

• Federal and state wiretapping acts; Pennsylvania Uniform Firearms Act

Claims Asserted

Claims identified in tracked public sources; pleadings may include additional or amended claims.

• Federal wiretapping claims
• State wiretapping claims
• Common law privacy torts
• Pennsylvania Uniform Firearms Act nondisclosure claim

What This Matter May Mean for Website Operators

For operators using similar technologies, the recurring factual questions in matters like this one are when session recording begins relative to consent and whether input masking covers every field; whether advertising pixels transmit page URLs or hashed form data before a consent choice. Our scanner tests these behaviors empirically.

The reported outcome direction at the standing stage reflects how tracked sources characterize the ruling; such rulings are often narrow, posture-specific, and fact-bound rather than broad statements of law.

Detection of a similar technology on a website is an informational risk indicator, not a legal conclusion, and nothing in this section is legal advice.

Related Intelligence

Sources

• Session replay Website Users Calvert, Hernandez, Moore, Tucker, and Vonbergen lack standing. — GovInfo · Tier A (Primary authority)

About This Page

Publisher: Inspection-Ready Institute, Inc. (DBA Crandall Consulting), an independent website compliance and risk consultancy. We are not a law firm and nothing on this page is legal advice.

How this content is produced: Facts are extracted from publicly available sources — court and government materials, recognized legal press, professional analysis, and industry reports — by our litigation intelligence engine, stored with full source provenance, and rendered from the database. Risk guidelines are computed by a deterministic formula, never by an AI model directly. See the full methodology.

Limitations: Counts labeled "Tracked" reflect matters identified in our source set and are not official court statistics. We report what courts decided and did not decide; we do not predict outcomes.

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