Ramos v. The GAP, Inc.

Background

Efren Ramos brought a putative class action against The GAP, Inc. He alleged that The GAP used Bluecore, Inc. software in marketing emails and on its website to track customers without consent. According to the complaint, the software used unique links, JavaScript, and cookies to collect information including email addresses, device types, geolocation, internet protocol addresses, email-opening information, and the portions of emails that customers clicked. The complaint alleged claims under the California Invasion of Privacy Act, statutory larceny, and California’s Unfair Competition Law.

The GAP moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal for failure to state a legally sufficient claim.

California Invasion of Privacy Act

The court granted the motion to dismiss Ramos’s claim under California Penal Code section 631(a) in each respect addressed.

First, the court held that The GAP could not be held directly liable as a party to the communications at issue. Although Ramos suggested that Bluecore might have monitored emails unrelated to The GAP, the complaint did not allege that. The court therefore granted the motion to dismiss to the extent Ramos sought to hold The GAP directly liable under section 631(a). The court separately considered Ramos’s theory that The GAP aided or abetted the alleged conduct.

Second, the court held that the first clause of section 631(a) does not apply to internet communications. The clause refers to tapping or making an unauthorized connection with a telegraph or telephone wire, line, cable, or instrument. The court adopted the view that this language is limited to telephone communications and granted the motion to dismiss on that basis.

Third, the court held that Ramos did not adequately allege the interception of protected communication content under the other clauses of section 631(a). The court explained that protected “contents” means the intended message conveyed by a communication, not record information about the communication, such as when it was opened, what device was used, the location of the device, or what link was clicked. The court found that the complaint did not clearly identify any protected content that Bluecore intercepted. It also found that the complaint did not plausibly allege that Bluecore read the emails themselves or intercepted the URLs as the substance or meaning of the emails. The court therefore granted the motion to dismiss on this basis as well.

Remaining Claims

The court granted the motion to dismiss the claims under California Penal Code section 635, statutory larceny, and the Unfair Competition Law because those claims depended on the alleged interception of protected content, which Ramos had not adequately pleaded.

The court also addressed two additional problems with the Unfair Competition Law claim to assist any amendment. Ramos did not allege that he lacked an adequate legal remedy, so he could not seek equitable relief. The court also found that Ramos did not adequately allege the economic injury required for standing under the Unfair Competition Law. His allegations that the value of his private and personally identifiable data and online activities had diminished were conclusory, especially because he had not sufficiently identified what data was intercepted.

Disposition

The court granted The GAP’s motion to dismiss. It stated that amendment might not be futile and allowed Ramos to file an amended complaint within 21 days of the order, provided counsel could do so consistently with Rule 11. The court warned counsel to plead the best case in any amended complaint and stated that it would not grant further leave to amend. The court also set a case-management conference for November 19, 2024, and directed the parties to file a joint case-management statement by November 12, 2024.