California District Court Dismisses Privacy Class Action Lawsuit Against LinkedIn

by Proskauer - Privacy & Data Security
Contact

[author: Amy Crafts]

A California District Court has dismissed with prejudice a class action lawsuit filed against LinkedIn on behalf of its registered users, finding the allegations too speculative to sustain a lawsuit. An earlier Complaint filed by one of the representative Plaintiffs was dismissed by the Court without prejudice, allowing the Plaintiff to amend the Complaint and bring the lawsuit again. In this recent decision, the Court dismissed all of the claims asserted in the Amended Complaint with prejudice, and without leave to amend either because the claims were legally defective or because the Plaintiff failed to cure deficiencies raised in LinkedIn’s motion to dismiss the original Complaint or raised in the Court’s order dismissing the original Complaint.

Plaintiffs alleged that LinkedIn’s web site was programmed to transmit to third parties (including advertisers, marketing companies, data brokers and web tracking companies) the URLs of the LinkedIn profiles users had visited, which contained the LinkedIn IDs of those profiles. In addition, Plaintiffs alleged that LinkedIn transmitted the unique numerical identifiers of third parties’ cookies that were present on LinkedIn users’ computers. According to Plaintiffs, due to the information transmitted by LinkedIn, third parties had the ability to assume (tenuously, in our view) that the LinkedIn profile most often viewed by the user was, in fact, his own profile. Plaintiffs alleged that this allowed third parties to identify individual LinkedIn users (by looking up their LinkedIn profile using the transmitted LinkedIn ID) and, using their cookie, associate a user’s identity with his web browsing history. Plaintiffs alleged that this practice was in violation of LinkedIn’s privacy policy, which stated, among other things, that “any information provided to third parties through cookies will not be personally identifiable…”  Plaintiffs alleged that these practices violated the Stored Communications Act, the California Constitution, the California False Advertising Law and also alleged common law breach of contract, invasion of privacy, conversion, unjust enrichment and negligence claims. 

In deciding to dismiss the Amended Complaint with prejudice (meaning that Plaintiffs are precluded from bringing the case again) the District Court considered a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction and a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. 

 

The only positive result for Plaintiffs was the Court’s decision regarding LinkedIn’s motion to dismiss for lack of subject matter jurisdiction. The Court considered whether Plaintiffs had suffered sufficient injury to satisfy the “case or controversy” requirement of Article III of the U.S. Constitution. To satisfy this requirement, at least one plaintiff must have suffered an injury in fact that is “concrete and particularized, as well as actual and imminent.” Because Plaintiffs alleged that their information was disclosed to third parties, the Court determined that Plaintiffs “sufficiently articulated, with particularity, injuries as to themselves for the purposes of Article III standing.”

 

After finding that Plaintiffs had established Article III standing, however, the remaining issues were resolved in favor of LinkedIn. With respect to LinkedIn’s motion to dismiss for failure to state a claim upon which relief can be granted, the Court separately evaluated each claim alleged by Plaintiffs, concluding that they should each be dismissed with prejudice. 

 

For example, the Court dismissed Plaintiffs’ claim that LinkedIn violated the Stored Communications Act, which creates criminal and civil liability for certain unauthorized access to stored communications and records, by finding that LinkedIn is not one of the two types of entities covered by the law, including entities that perform electronic communication services” (“ECS”) or remote computing services (“RCS”). In making this determination, the Court noted that an ECS is a provider of e-mail services, and a RCS is a “virtual filing cabinet.” The Court stated that “[e]ven taking Plaintiffs’ allegations as true, it does not appear that LinkedIn was functioning as an RCS when it disclosed the LinkedIn user ID and URL of the profile pages the user had viewed to third parties.” Specifically, it was not “processing or storing data by an offsite third party,” nor was it “acting as a virtual filing cabinet or as an offsite processor of data with respect to the user IDs it created.”

 

The Court also dismissed Plaintiffs’ invasion of privacy claims under both the California Constitution and common law, holding that Plaintiffs failed to allege sufficient facts to establish a highly offensive disclosure of information or a “serious invasion” of a privacy interest. With respect to the information allegedly disclosed by LinkedIn, the Court noted that “[a]lthough Plaintiffs postulate that these third parties could, through inferences, de-anonymize this data, it is not clear that anyone has actually done so, or what information precisely these third parties have obtained.” The Court concluded that the information disclosed to third parties by LinkedIn did not meet the standard set by California courts to prove an invasion of privacy claim.

 

In addition, the Court dismissed Plaintiffs’ allegation that LinkedIn violated California’s False Advertising Law (“FAL”). A private plaintiff has standing to pursue a FAL claim if the plaintiff “has suffered injury in fact and has lost money or property as a result of the unfair competition.” The Court determined that, with respect to one of the two representative Plaintiffs, the requirement of “lost money or property” was not met because that particular Plaintiff did not allege that he paid any money to LinkedIn and, instead, “relie[d] solely upon a theory that the alleged loss of personal property can constitute ‘lost money or property.’” In making its determination, the Court referred to its earlier decision dismissing the original Complaint, nothing that “personal information” does not constitute money or property for purposes of a FAL claim. 

 

Although the Court determined that the other representative Plaintiff met the “lost money or property” requirement by having paid $24.99 for a “Job Seeker Platinum” LinkedIn subscription, and thus established standing to pursue the FAL claim on behalf of the class, the Court ultimately agreed with LinkedIn that neither Plaintiff alleged reliance on false advertisements or misrepresentations made by LinkedIn. Indeed, the Court stated that “Plaintiffs never identif[ied] any advertisements or promotional materials exhibiting the alleged misrepresentations or omissions or allege[d] that Plaintiffs viewed and subsequently relied on these materials.” In addition, “Plaintiffs never allege[d] that they were aware of LinkedIn’s privacy policy, let alone saw or read it.”

 

The Court also rejected the remaining claims asserted by Plaintiffs, holding that Plaintiffs could not state a claim for breach of contract because neither of their two theories of damages – that Plaintiffs suffered embarrassment and humiliation caused by the disclosure of their personally identifiable browsing history, and that their personal information is valuable property – is sufficient under California law; that Plaintiffs’ conversion claim failed to establish the requisite “property interest” because personal information does not constitute property; that Plaintiffs’ unjust enrichment claim failed because California does not recognize a stand-alone cause of action for unjust enrichment; and that Plaintiffs’ negligence claim failed because Plaintiffs did not identify an “appreciable, non-speculative, present injury.”

 

The decision is a big win for LinkedIn, and is valuable precedent for use in the defense of future privacy claims. Like other cases dismissing privacy claims challenging online user tracking, Plaintiffs were unable to show damages or resulting harm sufficient to sustain their legal claims.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Proskauer - Privacy & Data Security | Attorney Advertising

Written by:

Proskauer - Privacy & Data Security
Contact
more
less

Proskauer - Privacy & Data Security on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!