On February 2, 2021, Judge Susan Van Keulen, in the Northern District of California, denied in part and granted in part Defendant’s Motion to Dismiss.  Flores-Mendez et al v. Zoosk, Inc. et al. (N.D. CA; 3:20-cv-04929-WHA).

Evaluating Article III standing based on Plaintiff’s consent to Defendant’s online privacy policy and terms of use, the Court held that:

[i]f “the contract language at issue is reasonably susceptible to more than one interpretation, with one of those interpretations suggesting consent and another belying it, the Court cannot decide the consent issue in [Defendant’s] favor at the motion to dismiss stage.” In re Facebook, Inc., Consumer Privacy User Profile Litig., 402 F. Supp. 3d at 789. At the motion to dismiss stage, the Court is not prepared to rule that the Privacy Policy establishes an absolute bar to Plaintiff’s claims. Thus, the Court finds that Plaintiff has adequately alleged that he has standing under Article III of the United States Constitution, and consent is not an absolute defense to all claims under Rule 12(b)(6). Accordingly, Defendant’s motion to dismiss pursuant to Rule 12(b)(1) is DENIED.

Considering whether Plaintiff sufficiently pled a common law violation of privacy, the Court found that:

[h]ere, Plaintiff alleges that Defendant collected “confidential and sensitive data,” including “how long Plaintiff’s [sic] and Class members’ [sic] use certain apps and how often apps were open.” Dkt. 1 ¶ 93. In the Complaint and at the hearing, no other types of data were alleged and the Parties agreed that this was the scope of the allegations regarding the information collected…Given the high bar in this district, the Court finds that Plaintiff has failed to adequately plead claims for invasion of privacy or intrusion upon seclusion. The data alleged to have been collected without Plaintiff’s consent, the frequency and duration of use of certain apps, does not rise to the requisite level of an egregious breach of social norms or intrusion in a manner highly offensive to a reasonable person. See In re Google, Inc. Privacy Policy Litigation, 58 F. Supp. 3d at 985. Accordingly, Defendant’s motion to dismiss Plaintiff’s constitutional and common law privacy claims is GRANTED.

“Plaintiff conceded that [the claim for violation of the CCPA] should be dismissed because there are no allegations of a security breach in this case.”

In evaluating Plaintiff’s claim for violation of Section 17200, the Court did not reject the theory that a properly alleged violation of CCPA could be the basis for the unlawful prong.

McCoy v. Alphabet, Inc. et al Order on Motion to Dismiss