Fregosa v. Mashable Inc.

Background

Dawn Fregosa sued Mashable, Inc. under California’s Invasion of Privacy Act. She alleged that, when she visited Mashable’s website, Mashable installed and used trackers on her computer without her consent and without a court order. The trackers obtained information including visitors’ internet protocol addresses and device fingerprints, such as device and browser types and persistent identifiers. Fregosa sought statutory damages for herself and the class she purported to represent.

Mashable moved to dismiss under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction and under Rule 12(b)(6) for failure to state a claim. The court addressed the jurisdictional argument first.

Personal Jurisdiction

Personal jurisdiction is the court’s authority to exercise power over a defendant. Fregosa relied on specific personal jurisdiction, which requires a sufficient connection between the defendant’s forum-related conduct and the claim. In a tort case, the plaintiff must show that the defendant intentionally acted, expressly aimed that conduct at the forum state, and caused harm the defendant knew was likely to occur there.

The court held that Fregosa adequately alleged that Mashable intentionally installed trackers and did not appear to dispute that the alleged conduct caused harm likely to be suffered in California. But Fregosa did not adequately allege that Mashable expressly aimed its conduct at California. The court explained that merely operating an interactive website accessible in California does not establish that the website operator targeted California.

The court concluded that Fregosa alleged, at most, that Mashable targeted website users generally, some of whom lived in California. The collection of internet protocol addresses, the use of targeted advertisements, and the possibility that Mashable could sell information about California users or direct advertising at them did not show what Mashable actually did to target California. The court also found that Mashable’s former California incorporation, California offices, parent company’s California offices, and privacy policy did not establish express aiming at the time of the alleged events.

Jurisdictional Discovery and Leave to Amend

Fregosa requested jurisdictional discovery concerning the number of California users and the advertising revenue associated with those users. The court found discovery inappropriate because the jurisdictional problem was not the number of users or the amount of revenue; those facts would not change the conclusion that Mashable’s alleged conduct did not target California.

The court granted Fregosa leave to amend so she could allege facts showing that Mashable targeted its own conduct at California, rather than merely targeting website users who happened to live there.

Disposition

Judge Charles R. Breyer granted Mashable’s motion to dismiss for lack of personal jurisdiction. Fregosa had 28 days from issuance of the order to file an amended complaint if she wished to do so. The court did not decide Mashable’s separate argument that the complaint failed to state a claim.