Rand v. Eyemart Express LLC

          IN THE UNITED STATES DISTRICT COURT                        
              NORTHERN DISTRICT OF TEXAS                             
                   DALLAS DIVISION                                   

RACHELLE RAND, et al.,          §                                         
                           §                                         
                           §                                         
Plaintiffs,                §                                         
                           §                                         
v.                              §       Civil Action No. 3:24-CV-621-N    
                           §                                         
EYEMART EXPRESS, LLC,           §                                         
                           §                                         
Defendant.                 §                                         


           MEMORANDUM OPINION AND ORDER                              

This Order addresses Defendant Eyemart Express, LLC’s (“Eyemart”) Motion to 
Dismiss Plaintiffs’ First Amended Complaint [32].  Because plaintiffs have failed to plead 
facts sufficient to state a claim for violation of the Federal Electronic Communications 
Privacy Act, the Missouri Wiretap Act, the Illinois Eavesdropping Statute, breach of 
contract, breach of implied contract, or intrusion upon seclusion, the Court grants the 
motion.                                                                   
                 I.  ORIGINS OF THE MOTION                           
Plaintiffs are five Meta (f/k/a Facebook) users who accessed the Eyemart website 
to search for prescription eyewear products and to search for eye doctors in their areas.  
Pls.’ Am. Compl. ¶¶ 26–30 [29].  Eyemart operates a retail website and a chain of physical 
stores where customers may browse for eyewear, both prescription and non-prescription.  
Id. ¶ 31.  Customers may purchase eyewear directly from the site or in store.  Id. ¶ 1.  For 
an online purchase, when a customer selects eyewear to purchase, the customer is prompted 
to select the type of lens for the selected frames and, if the customer selects prescription 
lenses, he or she is then prompted to enter prescription information.  Id.  ¶¶ 29–30, 70–71.  
The website also offers the ability to locate an eye doctor with whom the customer 

may  schedule  an  appointment.    Id.  ¶¶  1,  3.    The  website  provides  links  to  “online 
scheduling, phone numbers to call the locations, and addresses to visit the locations” of the 
eye doctors.  Id. ¶ 3.                                                    
Eyemart’s website utilizes Meta Pixel technology, which tracks predetermined user 
interaction “events” on a website, such as when a user clicks a designated button, adds an 

item to a digital cart, or searches for a location.  Id. ¶¶ 106–08.  The Pixel provides 
anonymized data to the website owner to learn how customers interact with the website.  
Id. ¶ 89.  The Pixel also shares the data with Meta in exchange for use of the tool.  Id. 
¶¶ 88–89.  Meta users who have previously agreed to the Meta Privacy and Cookie Policy 
have a user identification cookie stored on their device by Meta.  Id. ¶ 103; Def.’s Mot. 

14–15.  This cookie is included in metadata when Pixel events are triggered, attaching a 
unique identifier to otherwise anonymized data.  Pls.’ Am. Compl. ¶¶ 103, 109, 123.  This 
user identification cookie can then be used by anyone who understands the unique numeric 
identifier to de-anonymize information related to the user’s interactions on the site.  Id. 
¶¶ 103–105.                                                               

Plaintiffs all visited the Eyemart website with the intent to look at prescription 
eyeglasses.  Id. ¶¶ 26–30.  Plaintiff Rand additionally had the intent to schedule an 
appointment for an eye exam.  Id. ¶ 26.  Plaintiffs Lash and Mees purchased prescription 
eyewear from the website.  Id. ¶¶ 29–30.  All five of the named plaintiffs had Facebook 
accounts and had previously consented to Meta storing a user identification cookie on their 
devices;  therefore,  all  the  metadata  collected  about  their  interactions  on  the  website 
contained a cookie that made it capable of being de-anonymized.  Id. ¶¶ 26–30, 104–05.   

Plaintiffs brought this suit on behalf of themselves and all others similarly situated.  
Plaintiffs assert violations of the Federal Electronic Communications Privacy Act, the 
Missouri Wiretap Act, the Illinois Eavesdropping Statute, breach of contract, breach of 
implied contract, and intrusion upon seclusion.                           
The Court dismissed the first complaint for failure to state a claim.  The plaintiffs 

amended the complaint, adding two new named plaintiffs.  Eyemart now moves to dismiss 
Plaintiffs’ Amended Class Action Complaint for failure to state a claim.  
                II.  RULE 12(B)(6) STANDARD                          
When deciding a Rule 12(b)(6) motion to dismiss, a court must determine whether 
the plaintiff has asserted a legally sufficient claim for relief.  Blackburn v. City of Marshall, 

42 F.3d 925, 931

 (5th Cir. 1995).  A viable complaint must include “enough facts to state 
a claim to relief that is plausible on its face.”  Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 570

 (2007).  To meet this “facial plausibility” standard, a plaintiff must “plead[] 
factual content that allows the court to draw the reasonable inference that the defendant is 
liable for the misconduct alleged.”  Ashcroft v. Iqbal, 

556 U.S. 662, 678

 (2009).  A court 

generally accepts well-pleaded facts as true and construes the complaint in the light most 
favorable to the plaintiff.  Gines v. D.R. Horton, Inc., 

699 F.3d 812, 816

 (5th Cir. 2012).  
But a plaintiff must provide “more than labels and conclusions, and a formulaic recitation 
of the elements of a cause of action will not do.”  Twombly, 

550 U.S. at 555

 (internal 
citations omitted).  “Factual allegations must be enough to raise a right to relief above the 
speculative level . . . on the assumption that all the allegations in the complaint are true 
(even if doubtful in fact).”  

Id.

 (internal citations omitted).           

In ruling on a Rule 12(b)(6) motion, a court generally limits its review to the face 
of the pleadings, accepting as true all well-pleaded facts and viewing them in the light most 
favorable to the plaintiff.  See Spivey v. Robertson, 

197 F.3d 772, 774

 (5th Cir. 1999).  
However, a court may also consider documents outside of the pleadings if they fall within 
certain limited categories.  First, “[a] court is permitted . . . to rely on ‘documents 

incorporated into the complaint by reference, and matters of which a court may take judicial 
notice.’”  Dorsey v. Portfolio Equities, Inc., 

540 F.3d 333, 338

 (5th Cir. 2008) (quoting 
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 

551 U.S. 308, 322

 (2007)).  Second, “[a] 
written document that is attached to a complaint as an exhibit is considered part of the 
complaint and may be considered in a 12(b)(6) dismissal proceeding.”  Ferrer v. Chevron 

Corp., 

484 F.3d 776, 780

 (5th Cir. 2007).  Third, a “court may consider documents attached 
to a motion to dismiss that ‘are referred to in the plaintiff’s complaint and are central to the 
plaintiff’s claim.’”  Sullivan v. Leor Energy, LLC, 

600 F.3d 542, 546

 (5th Cir. 2010) 
(quoting Scanlan v. Tex. A&M Univ., 

343 F.3d 533, 536

 (5th Cir. 2003)).  Finally, “[i]n 
deciding a 12(b)(6) motion to dismiss, a court may permissibly refer to matters of public 

record.”  Cinel v. Connick, 

15 F.3d 1338

, 1343 n.6 (5th Cir. 1994) (citation omitted); see 
also, e.g., Funk, 631 F.3d at 783 (stating, in upholding district court’s dismissal pursuant 
to  Rule  12(b)(6),  that  “[t]he  district  court  took  appropriate  judicial  notice  of 
publicly-available  documents  and  transcripts  produced  by  the  [Food  and  Drug 
Administration], which were matters of public record directly relevant to the issue at 
hand”).                                                                   

             III.  THE COURT GRANTS THE MOTION                       
All the claims here are premised upon the allegation that Eyemart shared plaintiffs’ 
private health information (“PHI”) with Meta.  Therefore, the Court looks at the allegations 
of each plaintiff to determine whether he or she has sufficiently alleged (1) that the plaintiff 
shared any PHI with Eyemart, and (2) that Eyemart shared that PHI with Meta.  The Court 
first looks at Rand, Gottshau, and Soto to determine if their amended pleadings overcomes 

the previously found insufficiency, then the Court looks at the pleadings of the two new 
plaintiffs.                                                               
                Plaintiffs Rand, Gottshau, and Soto                  
The Court previously granted Eyemart’s first motion to dismiss, finding that Rand, 
Gottshau, and Soto, the only named plaintiffs in the first complaint, “failed to plead facts 

that plausibly establish that they shared any private health information with Eyemart that 
could be shared with Meta.”  Order at 9 [28].  In their amended complaint, these plaintiffs 
added only their subjective intent for visiting the Eyemart website, but again failed to plead 
any actual actions that would have shared any PHI.                        
In the amended complaint, Gottshau  and  Soto  did  not  amend  their  factual 

allegations.  Rand adds only that she visited the website with the intent to “purchase 
prescription eyewear as well as schedule an appointment for an eye exam,” and that her 
visit to the website “result[ed] in the disclosure of the name and location of the Eyemart 
location Ms. Rand used to obtain examinations and prescription eyewear from Eyemart.”  
Pls.’ Am. Compl. ¶ 26.  The Court has already held that her subjective intent for visiting 
the website, whether to purchase prescription eyewear or nonprescription sunglasses, does 
not constitute sharing of PHI.  See Mem. Order & Op., Oct. 1, 2024, at 8  (“Courts have 

found that HIPAA does not extend liability for entities to guard against ‘visitors’ subjective 
motives for visiting the page.’” (citing Am. Hosp. Ass’n v. Bercerra, 

2024 WL 3075865

 at 
*12 (N.D. Tex. 2024))).  The alleged disclosure of the location of the Eyemart store most 
convenient for Rand to visit and ultimately make her purchases does not constitute any 
shared PHI.  The amended complaint alleges that all plaintiffs affirmatively shared their 

locations with Meta through their Facebook accounts, Pls.’ Am. Compl. ¶¶ 26–30, so 
identifying the storefront near her where she could visit the same retailer in person that she 
was visiting online gives no new information to Meta.  Nor does her identification of a 
storefront near her share any information with Meta beyond an implication that she planned 
to visit a retailer that sells both prescription and non-prescription eyeglasses. 

The Court previously found that Rand, Gottshau, and Soto “failed to plead facts that 
plausibly establish that they shared any private health information with Eyemart that could 
be shared with Meta.”  Order at 9.  Because these plaintiffs have failed to add any material 
factual allegations that would lead to a different outcome, the Court finds that they have 
failed to plead facts to support their claims.                            

                    Plaintiffs Lash and Mees                         
In the amended complaint, plaintiffs added two named plaintiffs, Lash and Mees.  
Lash and Mees both allege that they purchased prescription eyewear from the Eyemart 
website and as part of the ordering process, they “entered [their] prescription information 
into the Website.”  Pls.’ Am. Compl. ¶¶ 29, 30.  Because they entered prescription 
information on the Eyemart website, the Court finds that these plaintiffs have plausibly 
established that they shared PHI with Eyemart.  Thus, the Court next looks to whether these 

plaintiffs have sufficiently alleged that their PHI was unlawfully shared with Meta.  
Plaintiffs’  amended  complaint  discusses  how  the  Pixel  does  not  track  every 
interaction  on  the  site  but  is  limited  to  those  which  the  website  owner  or  operator 
designates.  Id. ¶ 93.  Plaintiffs allege that the custom designed Pixel events include “when 
users add items to a digital cart,” “when users seek to find the location for an eye exam or 

a location to purchase their glasses,” and “may include the category or name of a product 
being searched.” Id. ¶¶ 107, 113.  Because Lash and Mee’s allegations are limited to the 
prescription  information  provided  when  ordering  prescription  eyeglasses,  plaintiffs’ 
arguments about PHI tracking on other parts of the site are irrelevant to the Court’s analysis 
here.                                                                     

As plaintiffs’ amended complaint describes, Eyemart’s online store blurs the lines 
between ordinary retail and healthcare retail with both prescription and non-prescription 
glasses on the same portion of the website.  Pls.’ Am. Compl. ¶ 81–82 (“While a brick-
and-mortar store may more effectively separate its optometry and normal business in a 
physical space, the lines are blurred for online stores.  Notably, products one would expect 

to find in the optometry section of a store are found by navigating the normal portions of 
the website.”)  Based on the descriptions of the Eyemart website in the amended complaint, 
it does not appear that the information of whether a customer was searching for prescription 
glasses, sunglasses, or fashion glasses, would be apparent until after an item is added to 
cart and more options are selected.  See id. fig. 8 (showing that for a given style of frames, 
the website offers clear lens options or options for gray, brown, black, green, blue, yellow, 
lavender, or pink lenses).  Because Eyemarts’ frames appear to be versatile and available 

for prescription lenses, sunglass lenses, or fashion lenses, information about the frames or 
the styles customers browse does not convincingly share any PHI.  Only after the frames 
have been selected do users input their prescription information on the ordering screen.  
See id. ¶¶ 67–72 and figs. 3, 4, 5 & 6.                                   
Plaintiffs allege that adding an item to a virtual cart triggers an “AddToCart event 

[which] discloses when a Tracked User adds frames and prescription lenses to their cart for 
purchase as depicted in Figures 12 and 13.”  Id. ¶ 114.  However, plaintiffs do not 
sufficiently allege that any PHI is disclosed when the AddToCart event is triggered or that 
the AddToCart event is triggered differently if prescription or non-prescription lenses are 
added to the frames.                                                      

Figures 12 and 13 identify the specific information that is sent to Meta in the 
AddToCart event: the name of the item, the product ID, the item price, the make and model, 
the material, and the third-party fulfillment entity.  See id. ¶ 122 and figs. 12 & 13; see also 
id. ¶ 128 (describing it as a “specific description of the frames and lenses”).  Figure 13’s 
caption says it depicts when an “AddToCart event discloses when Tracked Users add 

prescription lenses to digital cart”; however, the figure shows that the data includes only 
(1) the content ID, which plaintiffs do not explain or establish any connection to how it 
would disclose prescription information; (2) “Plastic,” which appears to be a description 
of the frame material; (3) “2LensAdvizor,” which appears to be a third party fulfillment 
entity; and (4) the price of the item.  Id. fig. 13.  Because nothing in Figure 13 depicts 
disclosure to Meta of prescription information or that the lenses are prescription lenses, the 
Court finds that this does not sufficiently allege that any PHI was shared with Meta.  

At most, plaintiffs have made the conclusory allegation that “add[ing] products to 
their digital shopping cart” triggered a Pixel event and therefore “resulted in PHI being 
intercepted.”  Id. ¶ 25.  However, nowhere in this factual pleading do plaintiffs allege that 
prescription information is included in the information tracked.  Moreover, the figures 
showing the metadata and identifying specifically what information is sent to Meta belie 

any conclusory statements that the prescription information is included, because it is 
notably absent from the data seen to be tracked there.                    
Plaintiffs argue that they need not “plead the necessary facts to show that the Pixel 
on the Website actually sent anything to Meta as to these particular plaintiffs” and that it 
is sufficient they “provide their actions on defendant’s website and allege that such actions 

would have resulted in the transmission of their information to Meta.”  Pls.’ Resp. at 8–9.  
However, unlike in the case they cite for that proposition, plaintiffs here fail to plead that 
their actions would have resulted in the transmission of their PHI to Meta because they fail 
to plead that the prescription information is captured by the Pixel.  See R.C. v. Walgreen 
Co., 

733 F. Supp. 3d 876

, 891 (C.D. Cal. 2024) (describing how in that case, the Pixel 

captured the items added to users’ shopping carts where the items themselves disclosed 
medical information).                                                     
Therefore, the Court finds that Lash and Mees have not sufficiently alleged that any 
PHI was disclosed to Meta through the Pixel.                              
         Because Plaintiffs Have Not Plausibly Alleged that Any      
        PHI was Shared with Meta, Each of the Claims Fails           
   Federal Electronic Communications Privacy Act. — The Federal Electronic 
Privacy Act (“ECPA”) is a one-party consent statute.  

18 U.S.C.A. § 2511

(f) (“It shall not 
be unlawful under this chapter for a person not acting under color of law to intercept a wire, 
oral, or electronic communication where such a person is a party to the communication or 

where one of the parties to the communication has given prior consent.”).  In other words, 
Eyemart cannot eavesdrop on communications directed at it “unless such communication 
is intercepted for the purpose of committing any criminal or tortious act.”  

Id.

  Plaintiffs 
argue  that  the  crime-tort  exception  applies  here,  because  to  the  extent  that  any 
communication contained PHI, the interception was a violation of HIPAA.   

As established above, plaintiffs have failed to plead facts to plausibly establish that 
any PHI was shared with Meta.  Therefore, because no facts support a violation of HIPAA, 
the crime-tort exception does not apply here.  Because the ECPA is a one-party consent 
statute and Eyemart consented to the tracking on its site, plaintiffs have failed to state a 
claim under the ECPA.                                                     
   Missouri Wiretap Act. — The Missouri wiretap statute is modeled off the ECPA 

and is similarly a one-party consent statute with a crime-tort exception.  MO. REV. STAT. 
§ 542.402.2(3); State v. King, 

873 S.W.2d 905, 908

 (Mo. Ct. App. 1994).  Rand, the only 
Missouri plaintiff, has failed to state a claim under this statute for the same reasons 
plaintiffs have failed to state a claim under the ECPA.                   
   Illinois  Eavesdropping Act.  —  Soto,  the  only  named  Illinois  plaintiff,  has 
brought a claims under the Illinois Eavesdropping Act (“IEA”) individually and on behalf 
of all others similarly situated.  Pls.’ Am. Compl. ¶ 28.  The IEA requires that the 

interception be “in a surreptitious manner” and without “the consent of all other parties to 
the private conversation.”  720 ILL. COMP. STAT. 5/14-2.  Soto alleges that he “reasonably 
expected” his PHI “to be private under HIPAA” and therefore his actions on the site related 
to his PHI were “private conversations” under the statute.  Pls.’ Am. Compl. ¶ 264.  The 
Court has already found that Soto did not plausibly plead facts to show he shared any PHI 

with Eyemart.  Therefore, he has failed to establish that he had any private conversation 
that could have been intercepted.                                         
   Breach  of  Contract,  Breach  of  Implied  Contract,  and  Intrusion  upon 
Seclusion. — Plaintiffs’ breach of contract claims and intrusion upon seclusion claims are 

premised upon the disclosure of plaintiffs’ PHI.  They claim any disclosure of PHI is 
contrary to Eyemart’s Terms of Use and the implied contract not to disclose PHI without 
consent.  Plaintiffs also claim that the sharing of PHI would be highly offensive to a 
reasonable person.  Because plaintiffs have failed to plausibly plead facts to show that any 
PHI was shared with Meta, there is insufficient factual basis to state a claim for breach of 
contract, breach of implied contract, or intrusion upon seclusion.        

                      CONCLUSION                                     
Because the Court finds plaintiffs have not alleged facts sufficient to state a claim 
for violation of the ECPA, the Missouri or Illinois wiretapping statutes, breach of contract, 
breach of implied contract, or intrusion upon seclusion, the Court grants Eyemart’s motion. 
Plaintiffs have already had an opportunity to replead, therefore the Court dismisses all 
claims with prejudice. 

 Signed May 27, 2025. 

                                                  A C. —C           
                                           Chief United States District Jud& 

MEMORANDUM OPINION & ORDER — PAGE 12