FUMIKO LOPEZ, et al. v. APPLE, INC.
Case No. 19-cv-04577-JSW
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
February 10, 2021
JEFFREY S. WHITE United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART APPLE‘S MOTION TO DISMISS; Re: Dkt. Nos. 54, 59
BACKGROUND
Plaintiffs Fumiko Lopez, Fumiko Lopez as guardian of minor A.L., Lishomwa Henry, and Joseph Harms (collectively, “Plaintiffs“) bring this putative consumer class action against Apple for violation of federal and state privacy laws. Like many others, Plaintiffs own Apple devices, namely, Apple iPhones. (Dkt. No. 48, Amended Complaint (“AC“) ¶¶ 43-46.) All Apple devices allegedly come pre-installed with a software program called “Siri,” which is a voice activated “intelligent assistant.” (Id. ¶ 2.) Plaintiffs allege the following facts:
Siri is an artificial intelligence-based virtual assistant that allows individuals to use their voice to ask questions and give instructions. (Id.) For instance, a user can ask Siri to provide information, set an alarm, or play music using only the voice. (Id. ¶ 21.) Apple launched Siri in 2011 and preinstalls it on every device it makes, from the Apple Watch to the Apple TV. (Id. ¶ 2.) Cognizant that users might be wary of vocal surveillance, Apple assures users that Siri will only
Notwithstanding these representations, on July 26, 2019, The Guardian published an article reporting that Apple had intercepted and disclosed private conversations without any user consent.1 (Id. ¶ 5.) The article describes two sets of facts. First, Siri is routinely triggered by accident without any hot word. (Id. ¶ 35.) Two Apple devices, the Apple Watch and the HomePod speakers, have particularly high accidental trigger rates and can be activated by a “sound of a zip.” (Id.) Second, a “small portion” of Siri recordings, both deliberate and accidental, are sent to third-party contractors for evaluation. (Id. ¶ 6.) The contractors grade Siri responses on “whether the activation of the voice assistant was deliberate or accidental, whether the query was something Siri could be expected to help with and whether Siri‘s response was appropriate.” (Id. ¶ 34.) As the result, the third-party contractors are sometimes exposed to “private discussions between doctors and patients, confidential business deals, and sexual encounters.” (Id. ¶ 33.)
Plaintiffs allege violations of the Federal Wiretap Act (“Wiretap Act“),
A. Legal Standard on Motion to Dismiss.
A motion to dismiss is proper under
Pursuant to Twombly, a plaintiff must not merely allege conduct that is conceivable but must instead allege “enough facts to state a claim to relief that is plausible on its face.” Id. 570. “A claim has facial plausibility when the plaintiff pleads 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) (citing Twombly, 550 U.S. at 556). If the allegations are insufficient to state a claim, a court should grant leave to amend, unless amendment would be futile. See, e.g., Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990); Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th Cir. 1990).
As a general rule, “a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) (overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) (citation omitted)). However, documents subject to judicial notice may be considered on a motion to dismiss. In doing so, the Court does not convert a motion to dismiss to one for summary judgment. See Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986) (overruled on other grounds by Astoria Fed. Sav. & Loan Ass‘n v. Solimino, 501 U.S. 104 (1991)).
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As a threshold matter, Apple challenges Plaintiffs’ Article III standing. No principle is more fundamental to the role of the judiciary that the “constitutional limitations of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997). A party seeking the federal court‘s jurisdiction bears the burden of demonstrating that she has standing to sue. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). If a plaintiff fails to satisfy the constitutional requirements to establish standing, the court lacks jurisdiction to hear the case and must dismiss the complaint. See Valley Forge Christian Col. v. Americans United for Separation of Church and State, 454 U.S. 464, 475-76 (1982). Standing must be supported “with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. Thus, at the pleading stage, the court must “accept as true all material allegations,” “construe the complaint in favor of the complaining party,” and “determine whether the plaintiffs have clearly alleged facts demonstrating each element of standing.” Namisnak v. Uber Techs., Inc., 971 F.3d 1088 (9th Cir. 2020) (citations and internal quotation marks omitted).
The “irreducible minimum” of Article III standing requires plaintiffs to show that they have “(1) suffered injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, -- U.S. --, 136 S. Ct. 1540, 1547 (2016) (citing Lujan, 504 U.S. at 560-61). The injury must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. 1548 (quoting Lujan, 504 U.S. at 560). To be “particularized,” an injury “must affect the plaintiff in a personal and individual way.” Id. (quoting Lujan, 504 U.S. at 560 n.1). To be “actual or imminent,” the injury must have already occurred or be “certainly impending.” Clapper v. Amnesty Int‘l USA, 568 U.S. 398, 409 (2013). A violation of substantive privacy rights “gives rise to a concrete injury sufficient to confer standing.” In re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 598 (9th Cir. 2020); Campbell v. Facebook, Inc., 951 F.3d 1106, 1117-19 (9th Cir. 2020). But standing “requires more than an injury to a cognizable interest“; it requires “that the party seeking review be himself among the injured.” Lujan, 504 U.S. at 563.
Here, Plaintiffs allege two theories of harm: first, Apple disclosed Plaintiffs’ private
As to the first theory, the Court agrees with Apple that the harm is overly speculative. Although Plaintiffs allege, in a conclusory fashion, that their communications were intercepted and disclosed, the complaint makes clear that their allegations are based entirely on the Guardian article. (See AC at ¶¶ 43-46 (referring to interception “as described above“).) The Guardian article does not plausibly suggest that all Apple‘s devices were subject to accidental triggers and review by third party contractors, much less that such interception always occurred in reasonably private settings. The article discusses frequency of accidental triggers primarily in relation to the Apple Watch and the HomePod speakers, neither of which are owned by the Plaintiffs. (Compare id. ¶ 35, with id. ¶¶ 44-46.) Moreover, the article expressly states that only a “small portion” of daily Siri activations including were sent to contractors and that they included both deliberate and accidental activations. (Id. ¶ 34.) Finally, although the article describes private communications among the recordings sent to contractors (see id. ¶ 33), Plaintiffs allege no facts to suggest that their own private communications were intercepted by accidental triggers.2
Thus, Plaintiffs’ claims of statutory privacy harm rest on an attenuated chain of possibilities that (1) their iPhones were accidentally triggered at some point, (2) the accidental triggers occurred in a context where Plaintiffs had a reasonable expectation of privacy, and (3) (for some claims) Plaintiffs’ communications were part of the “small portion” of recordings sent to third party contractors. Absent factual allegations regarding the rate of accidental triggers on devices that Plaintiffs actually own, as well as their particular use of those devices in contexts where they had a reasonable expectation of privacy, the injury remains too speculative for Article
As to the economic theory of injury, Plaintiffs’ theory suffers from the same defects, namely, that the allegations do not show that they themselves overpaid for the devices. Although it does not concern privacy, Birdsong is instructive. There, the plaintiffs alleged that Apple iPod earbuds could produce hearing loss if used for prolonged periods of time at high volume. See Id. 961. The court rejected the plaintiffs’ alleged injury as hypothetical because they have not alleged that they themselves suffered or were likely to suffer hearing loss. Id. The court then rejected the economic theory of harm because the risk of hearing loss was hypothetical, depending on how consumers chose to use the devices, and the plaintiffs thus had not alleged that they were deprived of the benefit of the bargain. Id. The same result follows here. Although Plaintiffs could have used their iPhones in private settings, they fail to allege that they have. Nor have Plaintiffs alleged that they purchased their devices in reliance on particular representations that Siri would not be accidentally triggered, which is necessary for the “benefit of the bargain” theory. In short, Plaintiffs simply fail to allege enough facts to show a personal injury.
At bottom, “‘the gist of the question of standing’ is whether [plaintiffs] have ‘such a personal stake in the outcome of the controversy as to assure that concrete adverseness which
Accordingly, the Court dismisses the complaint for lack of Article III standing.
C. Wiretap Act.
A violation of the Wiretap Act occurs where any person “intentionally intercepts . . . any wire, oral, or electronic communication” or “intentionally discloses” or “uses” the contents of any such wire, oral, or electronic communication, while “knowing or having reason to know that the information was obtained through the [unlawful] interception.”
Here, Apple seeks to dismiss for failure to allege that (1) Apple “intercepted” any communication, (2) intentionally, (3) Plaintiffs had a reasonable expectation of privacy in those communications, (4) Plaintiffs did not consent to the interception, and (5) under section 2511(1)(c), Apple intentionally disclosed the communications.
1. Interception.
The Wiretap Act defines “intercept” to mean “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.”
The argument is meritless. The intended recipient of “discussions between doctors and patients, confidential business deals, and sexual encounters” (AC ¶ 33) are doctors, business
Accordingly, the Court does not dismiss on this ground.
2. Intent.
Apple argues that because Plaintiffs admit that the Siri activations were “accidental” (e.g., AC ¶ 35), they cannot allege “intentional” interception. The intent requirement of the Wiretap Act requires a defendant to act “purposefully and deliberately and not as a result of accident or mistake.” United States v. Christensen, 828 F.3d 763, 774 (9th Cir. 2015). Although no “evil” motive is required, the defendant must have “acted consciously and deliberately with the goal of intercepting wire communications.” Id. 774. At the pleading stage, however, interception may be considered intentional “where a defendant is aware of the defect causing the interception but takes no remedial action.” Google Assistant Privacy Litig., 457 F. Supp. 3d at 815; see also Backhaut v. Apple, Inc., 74 F. Supp. 3d 1033, 1044 (N.D. Cal. 2014).
Although the question is close, the Court finds that Plaintiffs adequately allege intent at this stage. Plaintiffs allege that Apple knows of the accidental Siri triggers and, instead of deleting the resulting messages, sends them to contractors to improve Siri‘s functioning. (Id. ¶¶ 37-39.) To be sure, one of the purposes of the third-party contractor review is to distinguish deliberate from accidental Siri activations (and, presumably, to reduce the latter). (Id. ¶ 34.) It is difficult to see how Apple could intentionally allow accidental Siri triggers to proceed only to use the
Accordingly, the Court does not dismiss on this ground.
3. Confidentiality.
Apple next argues that Plaintiffs fail to allege that the intercepted communications were subject to a reasonable expectation of privacy.
Accordingly, the Court dismisses the Wiretap Act claims with leave to amend.
4. Consent.
Interception is not unlawful under the Wiretap Act where “one of the parties to the communication has given prior consent to such interception.”
Accordingly, the Court does not dismiss on this ground.
5. Disclosure.
Under Section 2511(1)(c) of the Wiretap Act, a party that “intentionally discloses” to “any other person” the contents of communications while “knowing or having reason to know that the information was obtained through the interception” of communications in violation of the statute is separately liable.
The Stored Communications Act (“SCA“) provides a private right of action against anyone who: “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) initially exceeds an authorization to access that facility . . . while it is in electronic storage in such system.”
1. Section 2701(a)(1).
To plead a violation of the “unlawful access” provision of Section 2701(a)(1), a plaintiff must allege that the defendant “(1) gained unauthorized access to a ‘facility’ where it (2) accessed an electronic communication in ‘electronic storage.‘” Facebook Internet Tracking Litig., 956 F.3d at 608. The statute does not define a “facility.” However, it specifies that the facility is one “through which an electronic communication service is provided.” See
Here, Plaintiffs’ Section 2701(a)(1) claim lacks merit. Plaintiffs claim that Siri is a “facility” through which Apple gained unauthorized access to their communications. That claim fails for three reasons. First, Siri is software and not a “facility” under any common sense of the term.5 Second, Plaintiffs do not allege that Siri provides an “electronic communication service“—
Ultimately, the SCA is meant to protect information “held by centralized communication providers.” Google Cookie Placement Consumer Privacy Litig., 806 F.3d at 147; see Facebook Internet Tracking Litig., 956 F.3d at 609 (“[T]he SCA has typically only been found to apply in cases involving a centralizing data-management entity.“); Theofel v. Farey-Jones, 359 F.3d 1066, 1072 (9th Cir. 2004) (“Just as trespass protects those who rent space from a commercial storage facility to hold sensitive documents, the [SCA] protects users whose electronic communications are in electronic storage with an ISP or other electronic communications facility.” (citation omitted)). The statute is not meant to provide a “catch-all . . . to protect the privacy of stored internet communications.” Google Privacy Policy Litig., 2013 WL 6248499, at *12 (citation omitted). Plaintiffs interpretation stretches the SCA beyond its reasonable limits and must be rejected. See Facebook Internet Tracking Litig., 956 F.3d at 609 (rejecting claims based on internet tracking because it would “stretch [the SCA] beyond its limits“).
Accordingly, the Court dismisses the Section 2701(a)(1) claim.
2. Section 2702(a)(1).
Unlike Section 2701, which broadly concerns third-party attempts to access a service provider‘s facilities, Section 2702 concerns the service provider itself. Under the “unlawful disclosure” provision of Section 2702(a)(1), the entity providing an electronic communication service may not “knowingly divulge any personal communication while in electronic storage by that service.”
Accordingly, the Court dismisses the Section 2702(a)(1) claim.
E. California Penal Code.
1. Section 631(a).
Section 631(a) of CIPA provides that:
[a]ny person who . . . intentionally taps, or makes any unauthorized connection . . . with any telegraphic or telephone wire, line cable, or instrument . . . , or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line or cable, or is being sent from, or received at any place within this state; or who uses, or attempts to use . . . or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable [as provided for in the statute].
The subsection prohibits three separate acts: “(1) intentional wiretapping, (2) willful attempts to learn the contents of a communication in transit, and (3) attempts to use or publicize information in either manner.” Ribas v. Clark, 38 Cal. 3d 355, 360 (1985) (In Bank) (citing Tavernetti v. Sup. Ct., 22 Cal. 3d 187, 192 (1978)). By its plain terms, the second prohibition applies to both communications “in transit over any wire, line or cable” and those “sent from, or received at any place within this state.”
The Court recognizes that the law regarding oral communications under Section 631(a)
California enacted CIPA in 1967 to replace prior laws that permitted recording of telephone conversations when one party consents. Flanagan v. Flanagan, 27 Cal. 4th 766, 768 (2002). CIPA was driven by concerns “that advances in science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications.”
Broadly speaking, Section 631 of CIPA protects against wiretapping, while Section 632 protects against eavesdropping and recording. See
Second, Section 632 is limited to confidential communications.
Furthermore, the Court finds that the plain meaning of the words in the statute supports a narrower interpretation. See Gruber v. Yelp Inc., 55 Cal. App. 5th 591, 605 (2020) (California courts give words “their usual and ordinary meaning“). The word “send” is typically defined as “to dispatch by a means of communication.” See Send, M-W.com, https://www.merriam-webster.com/dictionary/send (last visited Feb. 2, 2021) (emphasis added). Similarly, the word “receive” means “to come into possession of.” Receive, M-W.com, https://www.merriam-webster.com/dictionary/send (last visited Feb. 2, 2021). Neither of these words are typically used to refer to purely oral communications. The context in which these terms are used—communications “in transit or passing over any wire, line, or cable, or [] being sent from, or received at any place within this state“—makes clear that those terms distinguish messages that have already arrived or are immediately being sent, as opposed to those “in transit.” For these
Accordingly, the Court dismisses Plaintiffs’ Section 631(a) claim.
2. Section 632(a)
Section 632(a) of CIPA prohibits “intentionally and without the consent of all parties” using a device to “eavesdrop upon or record” confidential communications.
With respect to the second and third arguments, the Court reaches the same conclusions as it did for the Wiretap Act. See Google Assistant Privacy Litig., 457 F. Supp. 3d at 827 (noting the similarities between the claims). Although CIPA may have a slightly higher intent requirement, requiring intent to intercept confidential communications, rather than communications generally, that standard can be shown through “knowledge to a substantial certainty that . . . use of the equipment will result in the recordation of a confidential conversation.” See Rojas v. HSBC Card Servs. Inc., 20 Cal. App. 5th 427, 434-35 (2018); cf. Christensen, 828 F.3d at 774. Here, Plaintiffs adequately allege that Apple knew of the accidental Siri triggers, and the Court finds it plausible that some of those triggers would, with “substantial certainty,” occur in confidential contexts. See Rojas, 20 Cal. App. 5th at 430 (finding element satisfied where company intended to record work-related calls, but designed the system to record all calls).
However, Plaintiffs have not alleged that their own confidential communications were intercepted. The California Supreme Court defines confidentiality based on an “objectively reasonable expectation that the conversation is not being overheard or recorded.” Flanagan, 27 Cal. 4th at 774-76. As already noted, iPhones are frequently used in public settings, and Plaintiffs have not alleged that they used them in private settings that justify such an expectation. Plaintiffs have therefore not sufficiently alleged confidentiality. Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1020 (9th Cir. 2013) (dismissing claims where “too little is asserted in the complaint about . . . the particular circumstances of” the communications).
With respect to the first argument, the Court rejects it. Apple argues that it does not “use[] an electronic . . . recording device to eavesdrop” because the Plaintiffs control their iPhones. But
Accordingly, the Court dismisses the Section 632(a) claim for failure to plead confidential communications only.
F. California Common Law and Constitutional Privacy.
Plaintiffs brings claims for intrusion upon seclusion under California common law and invasion of privacy under the California Constitution. To state a claim for intrusion upon seclusion, a plaintiff must allege “(1) that the defendant intentionally intruded into a place, conversation, or matter as to which the plaintiff had a reasonable expectation of privacy and (2) that intrusion was ‘highly offensive’ to a reasonable person.” In re Facebook Internet Tracking Litig., 263 F. Supp. 3d 836, 846 (N.D. Cal. 2017) (citing Hernandez v. Hillsdale, 47 Cal. 4th 272, 285 (2009)). To state a claim for invasion of privacy under the California Constitution, a plaintiff must allege “(1) a specific, legally protected privacy interest, (2) a reasonable expectation of privacy, and (3) a ‘sufficiently serious’ intrusion by the defendant.” Id. (quoting Hill v. Nat‘l Collegiate Athletic Ass‘n, 7 Cal. 4th 1, 26 (1994)).
These claims are “not unrelated” under California law. Hernandez, 47 Cal. 4th at 286. “[T]he California Supreme Court has moved toward treating the tort and constitutional privacy inquiries as functionally identical, although the claims do continue to exist as separate claims with technically distinct elements.” McDonald v. Kiloo ApS, 385 F. Supp. 3d 1022, 1033 (N.D. Cal. 2019) (analyzing cases). Thus, when they are brought together, they are subject to a “combined inquiry” to determine “(1) the nature of any intrusion upon reasonable expectations of privacy, and (2) the offensiveness or seriousness of the intrusion, including any justification or other relevant interests.” Facebook Internet Tracking Litig., 263 F. Supp. 3d at 846. “Whether a legally recognized privacy interest is present in a given case is a question of law to be decided by the court.” Hill, 7 Cal. 4th at 40. By contrast, whether a “plaintiff has a reasonable expectation of
The Court finds that Plaintiffs have not sufficiently alleged a legally cognizable privacy interest. California courts have not recognized a general privacy interest in communications. In re Yahoo Mail Litig., 7 F. Supp. 3d 1016, 1040 (N.D. Cal. 2014) (discussing email). Instead, plaintiffs must typically allege an interest in “precluding the dissemination or misuse of sensitive and confidential information” (referred to as “information privacy“) or “making intimate personal decisions or conducting personal activities without observation, intrusion, or interference” (called “autonomy privacy“). Id. 1039 (citing Hill, 7 Cal. 4th at 35); see Hernandez, 27 Cal. 4th at 287. Plaintiffs allege neither. As explained above, Plaintiffs have not alleged specific circumstances to show that Apple intercepted their confidential communications. Nor have they alleged that the scale or pervasiveness of the accidental triggers itself gives rise to a privacy invasion. Therefore, Plaintiffs have not alleged a legally cognizable privacy interest. Cf. id. 1041 (dismissing claims where plaintiffs failed to allege interception of confidential email content).
Apple also moves to dismiss because (1) Plaintiffs continued to use Siri despite knowing of the accidental recordings, and (2) the recordings were not associated with an identifiable user. But these are only two elements of the fact-intensive inquiry for the “offensiveness” of the privacy invasion that requires examining “all of the surrounding circumstances.” Hernandez, 47 Cal. 4th at 295; see Facebook Internet Tracking Litig., 956 F.3d at 606 (listing “the likelihood of serious harm to the victim, the degree and setting of the intrusion, the intruder‘s motives and objectives, and whether countervailing interests or social norms render the intrusion offensive“). Notably, even if Plaintiffs cannot show a reasonable expectation of privacy after the Guardian article, they allegedly had some reasonable expectation prior to the publication based on Apple‘s own privacy policy. (See AC ¶¶ 31-33.) Accordingly, these factors are not dispositive for Plaintiffs’ California common law and constitutional privacy claims.
For these reasons, the Court dismisses the claims for intrusion upon seclusion and invasion of privacy under the California Constitution.
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To state a claim for breach of contract, plaintiffs must allege (1) the existence of a contract, (2) their performance under the contract, (3) defendants’ breach of the contract, and (4) damages. Facebook Internet Tracking Litig., 956 F.3d at 610 (citing Oasis W. Realty, LLC v. Goldman, 51 Cal. 4th 811, 821 (2011)). Here, Plaintiffs cite Apple‘s privacy policy, which is incorporated into Apple‘s software licensing agreement, which states that:
- “Siri is designed to protect your information and enable you to choose what you share.” (AC ¶ 31.)
- “Your personal data should always be protected on [the Siri Device] and never shared without [users‘] permission.” (Id. ¶¶ 32, 186.)
- “We‘re always up front about what we collect from you, and we give you the controls to adjust these settings.” (Id.)
- “Apple can use Siri to respond to your requests or send audio to Apple to transcribe to text – but only if you give your permission first.” (Id.)
Apple contends that these are “broad statements of company policy” that cannot form a contract. The Court disagrees. Viewed in context, the statements make concrete representations about Apple‘s data collection and use practices, while disclaiming other uses. For instance, the support page for Siri provides detailed representations about when Siri sends data to Apple, and the first statement above implicitly promises that no other sharing will occur. (See Dkt. No. 54-4.) Similarly, the third statement, while vague when viewed in isolation, precedes concrete promises about data collection while representing that Apple will disclose any other collection not already disclosed. (See Dkt. No. 54-3.) And the second and fourth statements expressly promise that data recording and sharing will not occur without permission.
Apple further contends that the contract included disclaimers that software operation will not be “error-free” and that Apple “may provide third parties with certain personal information” to “improve . . . products and services.” (Dkt. No. 53-2 at 6.) At this stage, there are at least disputes of fact over whether these general disclaimers defeat the broad promises Apple made elsewhere. Nevertheless, the Court agrees that Plaintiffs have not alleged breach of their contract because
Accordingly, the breach of contract claim is dismissed.
H. UCL.
Apple moves to dismiss Plaintiffs’ UCL claims on the grounds that (1) Plaintiffs lack standing because they do not allege they lost money or property, (2) Plaintiffs fail to allege a predicate violation under the “unlawful” prong of the UCL, and (3) Plaintiffs’ allegations under the “unfair” prong of the UCL are conclusory.
The UCL prohibits any “unlawful, unfair or fraudulent business act or practice.”
With respect to standing, Plaintiffs allege that they would not have purchased their devices if they knew about the accidental Siri triggers. This represents a cognizable economy injury. See Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 966 (9th Cir. 2018). Plaintiffs partially plead this theory because they allege that Apple‘s privacy representations “conveyed false information about the goods [they] purchased” and that they “would not have purchased the goods in question absent this misrepresentation.” Hinojos v. Kohl‘s Corp., 718 F.3d 1098, 1105 (9th Cir. 2013); (see AC ¶¶ 43, 191, 199.) However, Plaintiffs fail to allege the basic facts necessary for this theory,
With respect to the unlawful prong, Plaintiffs have also not alleged a predicate violation for the reasons stated in this Order.7 Rojas-Lozano, 159 F. Supp. 3d at 1117. Last, with respect to the unfair prong, the resolution of the utility of Apple‘s interception‘s weight against the privacy harm to consumers is plainly inappropriate at the motion to dismiss stage. Apple cites cases where claims under the unfair prong were patently unreasonable. See, e.g., Davis, 691 F.3d at 1170-71 (dismissing claims where the plaintiff read terms and conditions disclosing a purportedly omitted fact); Rojas-Lozano, 159 F. Supp. 3d at 1118 (dismissing claim that typing words into CAPTCHA field constitutes unpaid labor). Here, by contrast, a reasonable consumer could plausibly conclude that the harm from interception of confidential communications outweighs the utility from having Siri in the first place. Accordingly, the unfair prong is sufficiently pled.
For these reasons, the Court dismisses the UCL claim for lack of standing and for lack of a predicate violation under the unlawful prong only.
I. Declaratory Judgment
Plaintiffs’ declaratory judgment claim is “entirely commensurate” with the other claims. Monreal v. GMAC Mortg., LLC, 948 F. Supp. 2d 1069, 1081 (S.D. Cal. 2013). The Court therefore dismisses it for the same reasons stated above.
CONCLUSION
For the foregoing reasons, the Court GRANTS Apple‘s motion to dismiss with leave to amend. Plaintiff shall file and serve an amended complaint or a statement that no such amended complaint shall be filed within twenty days of the date of this Order, and Defendants shall file their response within twenty days thereafter.
Dated: February 10, 2021
JEFFREY S. WHITE
United States District Judge