Opperman v. Path, Inc.
2015 U.S. Dist. LEXIS 36137
N.D. Cal.2015Background
- Plaintiffs filed a putative class action alleging that Apple and multiple third‑party app developers (the App Defendants) allowed apps to access, upload, and misuse iDevice Contacts data without users’ knowledge or consent during the putative class period (2008–Feb 2012). Plaintiffs say Apple marketed iDevices as secure and helped developers build apps that accessed address books.
- Apple distributes apps exclusively via the App Store, controls developer registration, provides developer tools/guidelines (including iOS Human Interface Guidelines), and reviews apps before distribution.
- Plaintiffs assert conversion and intrusion‑upon‑seclusion claims against all defendants, and several California consumer‑protection and fraud‑based claims (FAL, CLRA, deceit, UCL) against Apple. Plaintiffs also seek injunctive relief, damages, restitution, and fees.
- Apple and the App Defendants moved to dismiss. Apple sought dismissal of the fraud‑based claims for failure to plead reliance, dismissal of omissions theories, dismissal of aiding/abetting and CDA defenses, and dismissal for lack of standing to seek injunctive relief. App Defendants raised Copyright Act preemption, lack of conversion standing, and consent/reasonable‑expectation of privacy defenses to the intrusion claim.
- The Court took judicial notice of various Apple public documents (license terms, privacy policy, HIG, App Store materials) cited in the complaint and, after applying Rule 12(b)(1)/(6) standards (and Rule 9(b) where applicable), granted dismissal in part and denied dismissal in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs may invoke Tobacco II alternative (excuse of individualized reliance) for Apple’s long‑term ad campaign | Plaintiffs alleged an extensive, long‑term advertising/campaign touting device security and consumer privacy; Tobacco II permits class pleading without individualized reliance if a campaign is pleaded | Apple: Rule 9(b) still requires particularized reliance allegations; Tobacco II doesn’t relax fraud pleading; campaign not long/extensive/specific enough | Court: Tobacco II substantive rule allows pleading a campaign in lieu of individualized reliance; plaintiffs sufficiently pleaded the six Tobacco II factors to survive dismissal |
| Whether Apple had a duty to disclose (omissions/active concealment/partial representations) | Plaintiffs allege Apple knew of inherent Contacts‑access defect, actively concealed it, and misled consumers while providing partial disclosures | Apple: Privacy policy and other disclosures negate omission; no actionable partial representations; warranty issues not pleaded | Court: Plaintiffs plausibly alleged exclusive knowledge and active concealment; partial‑disclosure theory fails for lack of pleaded reliance; warranty‑based omission theories fail for insufficient warranty pleading |
| Whether Apple can be liable for aiding/abetting and whether CDA §230 bars claims | Plaintiffs allege Apple substantially assisted and helped create apps (APIs, HIG) so Apple is partly responsible for app conduct | Apple: CDA §230 immunizes it as a provider; it did not create the underlying content and only encouraged developers | Court: Plaintiffs alleged Apple was responsible in part for app development (information content provider); CDA immunity not appropriate at this stage; aiding/abetting allegations sufficient to survive motion |
| Whether plaintiffs have standing to seek injunctive relief against Apple | Plaintiffs seek injunction; allege ongoing misconduct and risk of recurrence | Apple: Plaintiffs fail to allege a real/immediate threat or intent to repurchase iDevices; prior pleading admitted Apple remedied gaps | Held: Plaintiffs lack Article III standing for injunctive relief (no plausible allegation of future intent/real threat); injunctive claim dismissed with prejudice |
| Whether conversion claim survives (standing, injury, damages) against app defendants | Plaintiffs claim conversion of address‑book data via unauthorized access/use/upload — intangible property misappropriation | Defendants: No protectable property interest or Article III injury; copying of data is preempted by Copyright Act; no loss/damages alleged | Held: Conversion claim dismissed with prejudice for lack of Article III standing and inadequate injury/damages pleading; Copyright preemption not resolved in favor of defendants but conversion fails on standing |
| Whether intrusion upon seclusion claim survives against App Defendants (consent, expectation of privacy, offensiveness, damages) | Plaintiffs allege apps exceeded any limited consent (Find Friends) by uploading/misusing contacts; behavior was highly offensive and caused harm | App Defendants: Users consented via features/terms; accessing contacts was necessary to provide service; no reasonable expectation of privacy | Held: Intrusion claim survives pleading stage. Court rejects blanket consent/necessity defense at 12(b)(6); plaintiffs pleaded offensiveness and damages sufficiently |
Key Cases Cited
- In re Tobacco II Cases, 46 Cal.4th 298 (Cal. 2009) (a long‑term, extensive ad campaign can excuse individualized reliance pleading under California consumer laws)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility pleading standard under Rule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (complaint must plead factual content allowing plausible inference of liability)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (Article III standing requirements)
- Fair Housing Council of San Fernando Valley v. Roommates.com, 521 F.3d 1157 (9th Cir. 2008) (§230 immunity and when a provider is an information content provider)
- Jones v. Dirty World Entm’t Recordings, LLC, 755 F.3d 398 (6th Cir. 2014) (interpreting §230 limits; provider must do more than encourage content creation to be treated as creator)