Florentino Javier v. Assurance Iq, LLC
21-16351
| 9th Cir. | May 31, 2022Background
- Plaintiff Florentino Javier visited Nationalfamily.com (owned by Assurance) in January 2019 to request a life‑insurance quote.
- Assurance’s site used ActiveProspect’s TrustedForm product, which captured a real‑time video recording of Javier’s interaction and generated a certificate attesting consent to be contacted.
- After completing the questionnaire, Javier clicked a “View My Quote” button on a page stating that clicking constituted agreement to Assurance’s Privacy Policy.
- Javier sued Assurance and ActiveProspect under California Penal Code § 631(a) (CIPA) alleging his online communications were recorded without consent; the district court dismissed for failure to state a claim, concluding retroactive consent (via the privacy policy) was valid.
- The Ninth Circuit reversed, holding that under California law § 631(a) requires prior consent and that Javier plausibly alleged no express prior consent; the case was remanded. The panel did not resolve defenses including implied consent, third‑party status, or statute of limitations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CIPA § 631(a) permits retroactive consent | Javier: § 631(a) requires consent before recording; retroactive consent invalid | Defendants: post‑hoc consent (privacy‑policy click) can validate recording | Held: No — § 631(a) requires prior consent under California law; retroactive consent not sufficient |
| Whether Javier gave express prior consent | Javier: no express notice or request for consent before ActiveProspect recorded him | Defendants: point to website flow and post‑submission privacy notice | Held: Javier plausibly alleged absence of express prior consent; survives dismissal |
| Whether implied consent defeats claim | Javier: did not imply consent by use | Defendants: implied consent may apply | Held: Not decided — district court did not reach; remanded for further proceedings |
| Whether ActiveProspect is a third party under § 631(a) | Javier: ActiveProspect effectively recorded communications and is subject to § 631(a) | Defendants: ActiveProspect is a third party or otherwise outside § 631(a) | Held: Not decided — court did not reach this issue |
Key Cases Cited
- Kearney v. Salomon Smith Barney, Inc., 137 P.3d 914 (Cal. 2006) (interprets CIPA § 632 to require prior notice before recording)
- Ribas v. Clark, 696 P.2d 637 (Cal. 1985) (describes § 631’s prohibition on surreptitious monitoring and speaker’s interest in controlling dissemination)
- Smith v. LoanMe, Inc., 483 P.3d 869 (Cal. 2021) (emphasizes CIPA should be interpreted in light of broad privacy‑protecting purposes)
- Aceves v. Allstate Ins. Co., 68 F.3d 1160 (9th Cir. 1995) (federal courts must follow considered dicta of the California Supreme Court)
- PSM Holding Corp. v. Nat’l Farm Fin. Corp., 884 F.3d 812 (9th Cir. 2018) (federal courts must predict how the state’s highest court would decide unsettled state‑law issues)
- Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am., 15 F.4th 885 (9th Cir. 2021) (standards for Rule 12(b)(6) review)