804 F. Supp. 2d 1022
N.D. Cal.2011Background
- NebuAd moved to dismiss; ruling denied.
- NebuAd tracked ISP customers’ internet activity via devices installed on ISP networks.
- Data from tracking was sent to NebuAd’s California HQ to tailor ads and split profits with ISPs.
- Plaintiffs alleged federal and California privacy statute violations (ECPA, CCCL, CIPA) and unjust enrichment.
- Earlier, ISP defendants were dismissed for lack of personal jurisdiction; NebuAd remained as the defendant.
- ABC led NebuAd to liquidate; counsel withdrawal and settlement efforts caused ongoing motions and extended timelines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue under CIPA and CCCL | Plaintiffs are out-of-state but conduct occurred in California | Statutes protect California residents or those within the state | No residency requirement; standing exists under both statutes |
| Preemption by ECPA of CIPA and CCCL | ECPA does not preempt state claims; concurrent enforcement allowed | ECPA occupies field; preemption should apply | ECPA does not preempt CIPA/CCCL; state claims may proceed |
Key Cases Cited
- Kearney v. Salomon Smith Barney, 39 Cal.4th 95 (Cal. 2006) (application of CIPA to out-of-state plaintiffs; choice-of-law context discussed)
- People v. Conklin, 12 Cal.3d 259 (Cal. 1974) (California preemption holds; no occupancy of field by federal law)
- Bank of Am. v. City & County of S.F., 309 F.3d 551 (9th Cir. 2002) (framework for preemption analyses (express/field/conflict))