Low v. Linkedin Corp.

• Citation: 900 F.Supp.2d 1010
• Decision Date: 12 July 2012
• Docket Number: Case No. 11–CV–01468–LHK.
• Parties: Kevin LOW, individually and on behalf of all others similarly situated, Plaintiff, v. LINKEDIN CORPORATION, a California Corporation, and Does 1 to 50 inclusive, Defendants.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California

900 F.Supp.2d 1010

Kevin LOW, individually and on behalf of all others similarly situated, Plaintiff,
v.
LINKEDIN CORPORATION, a California Corporation, and Does 1 to 50 inclusive, Defendants.

Case No. 11–CV–01468–LHK.

United States District Court,
N.D. California,
San Jose Division.

July 12, 2012.

[900 F.Supp.2d 1016]

Michael Robert Reese, Belinda Williams, Kim E. Richman, Reese Richman LLP, Anne Marie Vu, Melissa Ryan Clark, Peter E. Seidman, Sanford P. Dumain, Milberg LLP, New York, NY, for Plaintiff.

Simon J. Frankel, Mali Beck Friedman, Covington & Burling LLP, San Francisco, CA, for Defendants.

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO DISMISS
LUCY H. KOH, District Judge.

Plaintiffs Kevin Low (“Low”) and Alan Masand (individually, “Masand,” collectively “Plaintiffs”), bring this putative class action against LinkedIn Corp. (“LinkedIn” or “Defendant”) alleging that personal information of the putative class members, including “personally identifiable browsing histor [ies],” were allegedly disclosed by Defendant to third party advertising and marketing companies through the use of “cookies” or “beacons.” Defendant's first motion to dismiss was granted on November 11, 2011, 2011 WL 5509848 (“November 2011 Order”). ECF No. 28.

In the Amended Complaint (“AC”), Plaintiffs allege violations of the Stored Communications Act, 18 U.S.C. § 2701 et seq.; the California Constitution; the California False Advertising Law, Cal. Bus. & Prof. Code § 17500 et seq.; common law breach of contract; common law invasion of privacy; conversion; unjust enrichment; and negligence. Pursuant to Civil Local Rule 7–1(b), the Court deemed Defendants' motion suitable for decision without oral argument. Thus, the hearing and case management conference set for July 12, 2012 were VACATED. For the foregoing reasons, the Defendant's motion to dismiss is DENIED in part and GRANTED in part.

I. BACKGROUNDA. Factual Background

Unless otherwise noted, the following allegations are taken from the Amended Complaint and are presumed true for purposes of ruling on Defendant's motion to dismiss. Plaintiffs bring this putative class action on behalf of all persons in the United States who registered for LinkedIn services after March 25, 2007. AC ¶ 58. LinkedIn is a web-based social networking site that presents itself as an online community offering professionals ways to network. Id. ¶ 8. Plaintiffs allege that LinkedIn allows transmission of users' LinkedIn browsing history, as well as the user's LinkedIn ID, to third parties, including advertisers, marketing companies, data brokers, and web tracking companies. According to Plaintiffs, LinkedIn's practices allow these third parties

[900 F.Supp.2d 1017]

to identify both the individual LinkedIn user, and the user's browsing history in violation of federal and state laws and in violation of LinkedIn's privacy policy. Id. ¶¶ 19–23.

The Amended Complaint sets forth allegations regarding LinkedIn's general policies and practices related to the transmission of users' information to third parties. First, LinkedIn assigns each registered user a unique user identification number. Id. ¶ 25. Second, when an internet user visits a LinkedIn user's profile page, LinkedIn sends a command to the Internet user's browser that designates a third party from which the browser should download advertisements and other content. Id. ¶ 16. This command requires the internet user's browser to transmit two components of information: (1) the third party tracking ID (“cookies”) on the user's hard drive corresponding with the designated third party, as well as (2) the URL of the LinkedIn profile being viewed, which includes the viewed party's LinkedIn ID (a unique number generated by LinkedIn to identify individual users). Id.

Plaintiffs allege that third parties can theoretically de-anonymize a user's LinkedIn ID number. Although Plaintiffs' allegations are somewhat unclear, Plaintiffs allege that third parties can associate a LinkedIn user ID and URL of the user's profile page with a user's cookies ID and thus determine a LinkedIn user's identity. For example, Plaintiffs allege that third parties can correlate a user's LinkedIn ID and profile page with the corresponding cookies ID because LinkedIn users generally view their page more than any other LinkedIn profile page. The information transmitted to third parties includes the LinkedIn ID and URL of the page being viewed as well as the cookies ID of the person viewing the LinkedIn page. Thus, third parties can determine that a LinkedIn user ID corresponds with a specific internet user because the LinkedIn user ID transmitted with the most frequency is likely the cookies ID owner's profile page. Id. ¶ 34. Similarly, Plaintiffs allege that when a LinkedIn user selects his or her own LinkedIn profile, a unique “View Profile” URL is generated and transmitted to third parties, which contains that user's LinkedIn ID. From this transmission a third party could associate a LinkedIn user's numeric identification and profile page with the cookie ID of the LinkedIn user. Id. ¶ 35.

Once a third party can associate a LinkedIn ID and profile page with a cookies ID, Plaintiffs allege that a third party can associate a de-anonymized LinkedIn user's identity with the user's browsing history. An internet user's cookies ID corresponds to a third party's records of Internet users' internet histories. Plaintiffs allege that third parties can view a LinkedIn user's browser history, including the other LinkedIn profiles with which a user has interacted as well as potentially sensitive information that may be gathered based on a user's prior Internet history. Id. ¶¶ 20–23. Moreover, Plaintiffs allege that these practices violate several parts of LinkedIn's privacy policy, including the provision that states that: “We do not sell, rent or otherwise provide [user's] personal identifiable information to any third parties for marketing purposes.” Id. ¶ 49.

Low and Masand allege that they are both registered users of LinkedIn. Id. ¶¶ 1–2. Although Low has not paid money for the services LinkedIn provides, Masand purchased a “Job Seeker Premium” subscription in November 2011, and his subscription remained active throughout the relevant time period. Id. ¶ 2. Both Low and Masand allege that LinkedIn transmitted their LinkedIn user ID to third parties, “linking [their personal identities] to [the third party's] secretly embedded

[900 F.Supp.2d 1018]

tracking device that surreptitiously recorded Mr. Low's [and Mr. Masand's] internet browsing history.” Id. ¶¶ 3, 36. Plaintiffs allege that as a result of the allegations explained above, Plaintiffs suffered two types of harm. First, Plaintiffs allege that they were “embarrassed and humiliated by the disclosure of his personally identifiable browsing history.” Second, Plaintiffs allege that their personally identifiable browsing histories are valuable personal property; and that they “relinquished [their] valuable personal property without the compensation to which [they were] due.” Id. ¶ 5.

B. Procedural Background

The original complaint, brought only by Plaintiff Low, was filed on March 29, 2011. Low alleged violations of the Stored Communications Act, 18 U.S.C. § 2701 et seq.; the California Constitution; the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.; the California False Advertising Law, Cal. Bus. & Prof. Code § 17500 et seq.; the California Consumer Legal Remedies Act, Cal. Civ. Code § 1750 et seq.; common law breach of contract; breach of the implied covenant of good faith and fair dealing; common law invasion of privacy; conversion; and unjust enrichment. On June 17, 2011, Defendant filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. ECF No. 13. Plaintiff filed an opposition on August 1, 2011. ECF No. 16. Defendant filed a reply on August 15, 2011. ECF No. 17. On November 11, 2011, the Court found that Plaintiff had failed to establish Article III standing, and granted Defendant's motion to dismiss for lack of jurisdiction with leave to amend. ECF No. 28.

Shortly thereafter, Low filed an Amended Complaint that added Alan Masand as a named plaintiff. ECF No. 31. The Amended Complaint also withdrew the claims based on the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq., and the Consumer Legal Remedies Act, but added a claim for negligence.

Defendant filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim on January 9, 2012. Motion to Dismiss (“MTD”), ECF No. 34. In the motion to dismiss, Defendant argues that the Amended Complaint fails to remedy the defects identified in the November 2011 Order. In particular, Defendant argues that this Court still lacks subject matter jurisdiction because Plaintiffs have failed to establish that either Low or Masand has standing under Article III of the United States Constitution. MTD at 1–2. In the alternative, Defendant argues that Plaintiffs continue to fail to state a claim upon which relief can be granted as to all eight claims alleged. Id. at 2–3. Plaintiffs filed an opposition to the motion to dismiss on February 2, 2012. ECF No. 37. Defendant filed a reply in support of the motion to dismiss on February 21, 2012. ECF No. 38.

II. LEGAL STANDARDA. Motion to Dismiss Under Rule 12(b)(1)

A jurisdictional challenge may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). Where the attack is facial, the court determines whether the allegations contained in the complaint are sufficient on their face to invoke federal jurisdiction, accepting all material allegations in the complaint as true and construing them in favor of the party asserting jurisdiction. See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Where the attack is factual, however, “the court need not presume the truthfulness of the...