Opperman v. Path, Inc., Case No. 13-cv-00453-JST
| Decision Date | 08 September 2016 |
| Docket Number | Case No. 13-cv-00453-JST |
| Parties | Marc OPPERMAN, et al., Plaintiffs, v. PATH, INC., et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
David M. Given, Nicholas A. Carlin, Brian Samuel Clayton Conlon, Conor Hughes Kennedy, Phillips Erlewine Given & Carlin LLP, Frank H. Busch, Ivo Michael Labar, James Matthew Wagstaffe, Michael John Von Loewenfeldt, Daniel Jack Veroff, Kerr & Wagstaffe LLP, San Francisco, CA, Jeffrey Scott Edwards, Edwards Law, Carl F. Schwenker, Dirk M. Jordan, Law Offices of Carl F. Schwenker, Austin, TX, James S. Notis, Jennifer Sarnelli, Gardy & Notis, LLP, Englewood Cliffs, NJ, Orin Kurtz, Gardy and Notis, LLP, New York, NY, Brian Russell Strange, Strange & Butler, John Theodore Ceglia, Strange & Carpenter, Los Angeles, CA, for Plaintiffs.
Gregory J. Casas, Greenberg Traurig, LLP, Houston, TX, Jedediah Wakefield, Kathleen Lu, Tyler Griffin Newby, Fenwick & West LLP, Michael Henry Page, Durie Tangri LLP, Michael G. Rhodes, Matthew Dean Brown, Cooley LLP, Claudia Maria Vetesi, Molly A. Smolen, Morrison & Foerster LLP, Harmeet K. Dhillon, Krista Lee Baughman, Micah R. Jacobs, Rachel Kung-Lan Loh, Dhillon Law Group Inc., Jui-Ting Anna Hsia, Katherine Robison, Zwillgen Law LLP, San Francisco, CA, James G. Snell, Lauren Beth Cohen, Julie Erin Schwartz, Perkins Coie LLP, Jessica S. Ou, Gibson Dunn, Lori R. Mason, Cooley LLP, Palo Alto, CA, Timothy L. Alger, Greenberg Traurig LLP, Irvine, CA, John Randall Tyler, Ryan T. Mrazik, Perkins Coie LLP, Christopher Brian Durbin, Cooley LLP, Seattle, WA, Alan D. Albright, Gray Cary Ware & Freidenrich LLP, Peter D. Kennedy, George & Donaldson, L.L.P., Shannon W. Bangle, Beatty, Bangle, Strama P.C., Adam Hugh Sencenbaugh, Hal L. Sanders, Jr., Haynes & Boone LLP, Austin, TX, Clayton Cole James, Jessica Adler Black Livingston, Hogan Lovells US LLP, Denver, CO, Jenny Qian Shen, Electronic Arts Inc., Redwood City, CA, Maren Jessica Clouse, Robert B. Hawk, Hogan Lovells US LLP, Menlo Park, CA, Mazda Kersey Antia, Erin Elisa Goodsell, Cooley LLP, San Diego, CA, David Frank McDowell, Morrison & Foerster LLP, Shelley Gershon Hurwitz, Holland & Knight LLP, Naomi Elana Beckman-Straus, Valentine Antonavich Shalamitski, Mitchell Silberberg & Knupp LLP, Robert N. Klieger, Ellen Carol Kenney, Matthew Zachary Kaiser, Hueston Hennigan LLP, Los Angeles, CA, Judith R. Nemsick, Christopher G. Kelly, Holland & Knight LLP, Christine Lepera, Jeffrey M. Movit, Mitchell Silberberg & Knupp LLP, New York, NY, Jacob Alan Sommer, Marc J. Zwillinger, Zwillgen PLLC, Washington, DC, for Defendants.
ORDER DENYING YELP'S MOTION FOR SUMMARY JUDGMENT
Re: Dkt. No. 689
Before the Court is Defendant Yelp, Inc.'s motion for summary judgment. The Court will deny the motion.
Plaintiffs challenge conduct by Apple and various developers of applications ("apps") for Apple devices. See Second Consolidated Amended Complaint ("SCAC"), ECF No. 478. Plaintiffs allege that Yelp and other app developers improperly uploaded address book data from their phones without their consent. See , e.g. , id. ¶¶ 119-120. Yelp now moves for summary judgment on the ground that Plaintiffs consented to allow this uploading.
The facts of this putative class action have been recited in detail in prior orders and require only a brief summary here. Each Apple device comes pre-loaded with a "Contacts" app that owners may use as an address book to input and store various information about the owner's contacts. Id. ¶ 54, 55. The Plaintiffs allege that this information "is highly personal and private, and "is not shared, is not publicly available, is not publicly accessible, and is not ordinarily obtainable by a third party unless the owner physically relinquishes custody of his or her device to another individual." Id. ¶ 56. Plaintiffs further allege that Yelp and other app developers uploaded their contacts data without their consent.
The Yelp app introduced a Friend Finder" feature on approximately January 16, 2010.1 ECF No. 689-1 ¶ 4. This feature allowed Yelp users to locate other Yelp users they know by comparing the email addresses in the user's local Contacts app with a database of email addresses of registered Yelp users. Id. ¶ 2.
Yelp's "Friend Finder" feature was only available to registered Yelp users who agreed to Yelp's Terms of Service and Privacy Policy. Id. ¶¶ 2, 3. To create a Yelp account, a user must complete the online registration process by accessing Yelp's website on a computer or through the mobile app. Id. Before a user can advance past the first page of the registration process, he or she must click on a red button. Id. ¶ 3. The following statement appears above the red button: "By clicking the button below, you agree to Yelp's Terms of Service and Privacy Policy."2 Id. In turn, if one clicks on the blue hyperlinked text reading "Terms of Service" or "Privacy Policy," he or she is taken to a web page that displays those policies. Id. The Yelp Privacy Policy in effect on September 21, 2011 stated, in part:
Contacts: You can invite your friends to join the Site by providing their contact information or by allowing us to use your address book from your computer, mobile device, or other sites. If you invite a friend to join and connect with you on the Site, we may use and store your friends' contact information long enough to process your requests.
Request for Judicial Notice in Support of Yelp's Motion for Summary Judgment, ECF No. 690, Ex. B at 2.3 The Yelp Privacy
Policy in effect on May 26, 2009 included the following notice about contacts data:
You may choose to provide us with another person's e-mail address so that person may be invited to create an account on this website and become your friend. We use this information to contact and, if necessary, remind that person about the invitation. By providing us with another person's e-mail address, you represent to us that you have obtained the consent of the person concerned as regards such disclosure to us of their personal information. All invitees are provided with the option not to receive further invitations.
Id. Ex. A at 4. Once the user created a Yelp account and agreed to the Terms of Service and Privacy Policy, he or she would be able to access the "Friend Finder" feature in the Yelp app on their mobile device. ECF No. 689-1 ¶ 4.
A registered Yelp user who navigated to the "Friend Finder" feature between January 16, 2010 and February 22, 2012 would see the following pop-up dialog box:
?
Id. 4 Between February 22, 2012 and March 8, 2012, the dialog box was changed to read the following: Id. Underneath that dialog box, the user could select either "No Thanks" or "OK." Id. During either time period, if the user clicked "Yes, Find Friends" or "OK" the Yelp app transmitted the email addresses in the user's Contacts app to Yelp's servers and cross-checked those email addresses against the email addresses of registered Yelp users. Id. ¶ 5.
As an app developer, Yelp was bound by several contracts with Apple. Yelp entered into a Program License Agreement ("PLA") in which it appointed Apple as its "worldwide agent for the delivery of [its app]." ECF No. 727-6, Ex. C at 2, 7-8, § 3.1(e). The PLA provides that "applications may not collect user or device data without prior user consent." Id. at 9, § 3.3.9. Yelp was also subject to Apple's App Store Review Guidelines. ECF No. 727-5, Ex. B at 3, § 1.1. Guideline 17.1 provides that "[a]pps cannot transmit data about a user without obtaining the user's prior permission and providing the user with access to information about how and where the data will be used." Id. at 16, § 17.1.
In February 2012, Apple conducted an internal technical investigation to determine whether certain apps, including Yelp, complied with its privacy guidelines. Apple concluded that the "[o]ld version sends contact data up to yelp.com without the user's permission." ECF No 727-7, Ex. D at 16. Even though Yelp had recently changed the dialog box to alert users that the app would "need to look at your contacts to find friends," Apple nonetheless concluded that the "[n]ew version... doesn't inform the user that the date [sic] is uploaded to yelp.com." Id. at 16, 18, 20 ().
In response to this internal investigation, Yelp changed its pop up dialog box to display the following message: ECF No. 689-1 ¶ 4 (emphasis added); ECF No. 727-7, Ex. D at 2; ECF No. 727-4, Ex. A at 3. The Plaintiffs do not challenge Yelp's conduct after these changes were implemented. ECF No. 727 at 16:2.
Around the same time Apple was conducting its internal investigation, major media sources began reporting about the alleged privacy breach. See Plaintiff's Request for Judicial Notice, ECF No. 749, Exs. A-F; Plaintiff's Request for Judicial Notice, ECF No. 728, Exs. A-F.5 Congress reacted by opening an inquiry into Apple's privacy practices. See ECF No. 748-11, Ex. J; ECF No. 748-12, Ex. K; see also Protecting Mobile Privacy: Your Smartphones, Tablets, Cell Phones and Your Privacy : Hearing Before the Subcommittee on Privacy, Tech. and the Law of the S. Judiciary Comm., 112th Cong. (2011), available at https://www.judiciary.senate.gov/imo/media/doc/CHRG-112shrg86775.pdf. And the Federal Trade Commission also issued a Civil Investigative Demand to investigate whether apps uploaded user's contacts without their consent. See ECF No. 748-13, Ex. L.
Plaintiffs brought this suit against Apple and several app developers, including Yelp, as a putative class action.6 See ECF Nos. ...
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