No. 23-1683

SCOTT ROSENTHAL,

Plaintiff, Appellant,

v.

BLOOMINGDALES.COM, LLC,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Gelpí, Selya, and Thompson, Circuit Judges.

Jamisen A. Etzel, with whom Lynch Carpenter, LLP, Brian C. Gudmundson, Rachel K. Tack, Zimmerman Reed LLP, Joseph P. Guglielmo, Carey Alexander, Ethan S. Binder, and Scott+Scott Attorneys at Law LLP were on brief, for appellant. Mark W. Mosier, with whom Emily Johnson Henn, Eric C. Bosset, Kendall T. Burchard, Grace Pyo, and Covington & Burling LLP were on brief, for appellee.

May 9, 2024 SELYA, Circuit Judge. The prevalence of various software applications in modern commercial life has given rise to a host of novel legal questions. This appeal poses a jurisdictional question of that genre. Concluding, as we do, that the district court appropriately determined that specific personal jurisdiction over the defendant was lacking in the forum state notwithstanding the defendant's use of session replay code (SRC), we affirm the district court's dismissal of the action for want of jurisdiction.

I

We briefly rehearse the relevant facts and travel of the case. Given that this appeal follows the district court's grant of a motion to dismiss for want of personal jurisdiction based on a prima facie record, we "take the facts from the pleadings and whatever supplemental filings (such as affidavits) are contained in the record, giving credence to the plaintiff's version of genuinely contested facts" and embracing "undisputed facts put forth by the defendant." Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d 28, 34 (1st Cir. 2016).

Plaintiff-appellant Scott Rosenthal is a resident and citizen of Massachusetts. Defendant-appellee Bloomingdales.com, LLC (Bloomingdales) is an Ohio limited liability company with its principal place of business in New York. The sole member of Bloomingdales is Bloomingdale's, LLC, of which the sole member is

- 2 - Macy's Retail Holdings, LLC (Macy's RH). In turn, the sole member of Macy's RH is Macy's, Inc., a Delaware corporation that maintains its principal place of business in New York.

On November 15, 2022, the plaintiff filed a putative class action in the United States District Court for the District of Massachusetts alleging that Bloomingdales had unlawfully intercepted and used information about his activity on its website. According to the plaintiff's complaint, the plaintiff regularly visited Bloomingdales' website, including while in Massachusetts. Bloomingdales, the complaint alleged, had commissioned third-party vendors (sometimes called "session replay providers" or "SRPs"), such as the Georgia-based company FullStory, to embed snippets of JavaScript computer code on its website. Unbeknownst to the plaintiff, this SRC was deployed onto his internet browser while he visited Bloomingdales' website in order to intercept, record, and map his electronic communications with the website. Bloomingdales and the SRPs then used these communications to recreate the plaintiff's visits to the website and to assemble for analysis a video replay of his behavior on the website. By secretly "looking over [his] shoulder," the plaintiff's complaint alleged, Bloomingdales transgressed both the Massachusetts Wiretapping Act, M