On January 28, 2021, Judge Alsup, in the Northern District of California, denied in part and granted in part Defendants’ Motion to Dismiss.  Flores-Mendez et al v. Zoosk, Inc. et al. (N.D. CA; 3:20-cv-04929-WHA).

Zoosk, a dating app, is a subsidiary of Spark.  Spark’s principal place of business is in Berlin.  Spark filed a 12(b)(2) motion challenging the Court’s personal jurisdiction.  The parties put forth competing evidence and ultimately, the Court held that Plaintiff is entitled to discovery on Spark’s level of control over its subsidiaries’ business operations in California and its involvement in marketing across subsidiaries in California.

Zoosk filed a 12(b)(6) motion and challenged the claims for negligence, violation of 17200, declaratory relief, and violation of the CCPA.  The Court denied the Motion to Dismiss the claim for negligence.  Plaintiffs alleges more than just economic loss and therefore, the economic loss doctrine does not bar Plaintiffs’ claim.  As to duty of care, the Court found that a “dating app contains sensitive information about sexual preferences, which means that a hack and subsequent use of the private information could plausibly lead to blackmail and embarrassment” and therefore, Plaintiffs met the pleading requirement.   Looking at whether there was a breach alleged, the Court noted that almost all facts are within Defendant’s possession and “[t]he breach would not have occurred but for inadequate security measures, or so it can be reasonably inferred at the pleadings stage.”  The Court went on to find that “plaintiffs have alleged a loss of privacy, heightened risk of future identity theft, loss of time, and anxiety. They do not, for example, allege that they had to buy credit- monitoring services, nor do they adequately allege the value of their time in terms of opportunity cost.  Plaintiffs have not alleged a right to sue under Section 17200.”  Notably, Plaintiffs agreed to dismiss their claim under the CCPA before the Motion to Dismiss was ruled on.

Flores-Mendez Et Al V. Zoosk, Inc. Et Al – Order on MTD