In Re Meta Pixel Healthcare Litigation

Background

Meta sought certification for an interlocutory appeal of part of the court’s September 7, 2023 order, which had denied in part and granted in part Meta’s motion to dismiss. The requested appeal concerned whether plaintiffs could adequately plead the purposeful or deliberate intent required for a wiretapping claim under the Electronic Communications Privacy Act, even though Meta allegedly instructed business partners not to send sensitive information to it.

In the earlier order, the court found that plaintiffs had adequately alleged intent. The court relied on allegations that Meta nonetheless received significant amounts of private information and used that information for targeted advertising. It explained that Meta’s true intent, the steps it took to prevent receiving health information, the effectiveness of its filtering tools, and the feasibility of other safeguards involved disputed factual questions requiring a fuller evidentiary record.

Meta argued that a different order involving Google had created a conflict in the Northern District of California. The court explained that certification under 28 U.S.C. § 1292(b) requires a controlling legal question, substantial grounds for disagreement about that question, and an immediate appeal that could materially advance the end of the litigation. Certification is also discretionary.

Ruling

The court denied Meta’s motion for certification for interlocutory review. Judge William H. Orrick held that the issue Meta wanted the Ninth Circuit to review was not a controlling question of law but a mixed question of law and fact. The court had applied the legal standard from United States v. Christensen to the particular facts alleged in the complaint and concluded that those allegations adequately pleaded intent.

The court acknowledged the different result in the Google case but agreed with the other judge’s observation that the difference could stem from the allegations in the two complaints. It also noted two other decisions at the motion-to-dismiss stage that found Meta’s terms governing pixel use did not establish as a matter of law that Meta lacked intent, because intent and willfulness required factual development. The court concluded that the issue would benefit from a more developed record and denied certification.

Sealing Rulings

The court also denied the plaintiffs’ motion to file their opposition conditionally under seal and Meta’s motion to file part of its reply under seal, except as to Exhibit 1 to Docket No. 640. The Clerk was ordered to unseal Docket Nos. 640-3 and 658-3. Docket No. 640-2, which contained Meta’s internal code, could remain under seal at that stage.