Jane Doe alleged that Favor shared sensitive medical information with third-party providers of online tracking tools despite Favor’s guarantees that it didn’t sell or market the personal information it collected.
Meta and TikTok failed to meet their burden of showing that Doe’s agreement to Favor’s privacy policy was sufficient at this stage of the litigation to indicate her consent to their data-collection practices, Judge William H. Orrick of the US District Court for the Northern District of California said Wednesday.
TikTok’s argument that Doe’s claims failed because she didn’t identify the sensitive information it received from the pharmacy also fell short, Orrick said.
Her allegation that she provided information concerning prescriptions for birth control, emergency contraceptives, and condoms was sufficiently specific to survive a motion to dismiss, the judge said.
Orrick denied Meta and TikTok’s motions to dismiss Doe’s claims of intrusion upon seclusion, unjust enrichment, and violations of the California Invasion of Privacy Act.
The judge dismissed Doe’s claims against co-defendant FullStory Inc. on jurisdictional grounds after finding that Doe failed to show it expressly aimed its conduct act California in providing its session-replay software to Favor.
He also dismissed Doe’s claims against all defendants under the Confidentiality of Medical Information Act.
Favor was dismissed from the lawsuit after it filed for bankruptcy.
Consent
Meta argued in its motion to dismiss that Doe’s agreement to the privacy policy was enough to show she consented to its data collection, but Orrick said the policy was ambiguous in including both disclosures of some tracking features on its website and assertions that Favor wouldn’t sell users’ personal information or use it for marketing purposes.
Dismissal on the basis of consent wasn’t appropriate at this stage of the litigation, he said.
The failure of the argument on consent also defeated Meta’s challenges to Doe’s claims of intrusion upon seclusion and violations of Section 632 of the CIPA, which were based upon the plaintiff’s agreement to the privacy policy, Orrick said.
Meta and TikTok each mounted challenges to Doe’s claims under Section 631 of the CIPA, but neither was successful, Orrick said.
Doe met her burden at this stage of providing facts showing that the data interception occurred in California, that it occurred intentionally, and that it involved confidential communications.
Orrick said he had addressed and rejected other challenges from Meta to Doe’s claims under the CIPA and her unjust-enrichment claim in a September order in a similar case involving Meta’s pixel technology, In re Meta Pixel Healthcare Litigation.
Lynch Carpenter LLP and Lowey Dannenberg PC represent Doe. Gibson, Dunn & Crutcher LLP and Cooley LLP represent Meta. Wilson Sonsini Goodrich & Rosati represents TikTok. Covington & Burling LLP represents FullStory.
The case is Doe v. FullStory Inc., N.D. Cal., No. 3:23-cv-00059, 1/17/24.