Ramos v. The GAP, Inc.
4:23-cv-04715
N.D. Cal.Jul 29, 2025Background
- Plaintiff Efren Ramos filed a putative class action against The Gap, Inc., challenging its use of third-party email tracking software (Bluecore, Inc.) embedded in marketing emails sent to customers.
- Plaintiff alleged that Bluecore’s technology tracked customer interactions with emails, including which images and links were clicked, and aggregated this data to create detailed customer profiles.
- Claims asserted included (1) violation of the California Invasion of Privacy Act (CIPA) §§ 631(a) and 635, (2) statutory larceny (Cal. Penal Code §§ 484, 496), and (3) violations of the California Unfair Competition Law (UCL).
- The court previously dismissed the original complaint; after an amended complaint was filed, Gap again moved to dismiss.
- The Court, deciding on the pleadings, granted Gap’s second motion to dismiss and closed the case without leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CIPA § 631(a) liability for wiretapping email | URLs and tracking pixels unlawfully intercept email content | Defendant’s actions do not involve interception of protected "content"; URLs are addresses, not content | No CIPA violation; URLs/trackers do not capture protected content |
| CIPA direct liability (party to communication) | Defendant is liable as a wiretapper, including when emails forwarded | Defendant is a party to emails, so not liable under CIPA | Defendant cannot be directly liable as a party to communication |
| Statutory larceny (theft of user data) | Email and tracking data are property capable of exclusive possession | Data is not property subject to exclusive control; shared with multiple parties | No larceny; tracking data is not property under statute |
| UCL (Unfair Competition Law) | Business practices are unfair and unlawful under UCL | UCL claim depends on failed CIPA and larceny claims | UCL claim fails as dependent on insufficient underlying violations |
Key Cases Cited
- In re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589 (9th Cir. 2020) (party to a communication cannot be liable under CIPA § 631(a))
- In re Zynga Privacy Litigation, 750 F.3d 1098 (9th Cir. 2014) (URLs that function as addresses or routing information do not qualify as protected "content" under the statute)
- Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) (detailing specificity required in Rule 9(b) pleadings)
- Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025 (9th Cir. 2008) (court construes pleadings in light most favorable to plaintiff on motion to dismiss)