Gerber v. Twitter, Inc.

Background

Plaintiffs allege that Twitter breached an implied contract to secure user data even though it knew about security vulnerabilities. According to the allegations described in the opinion, those vulnerabilities led to a breach of personally identifying information for an estimated 200 million users from about June 2021 through January 2022. The information included names, email addresses, phone numbers, and dates of birth, and was offered for sale or leaked on the dark web between August 2022 and January 2023.

In an order dated December 18, 2024, the court granted in part and denied in part Twitter’s motion to dismiss. The court found that the Terms of Service were unconscionable, meaning not enforceable in the circumstances described, in part because Twitter allegedly knew about its security vulnerabilities and chose not to address them. The court also found that plaintiffs had sufficiently alleged a breach-of-implied-contract claim. The court denied the motion in all other respects.

Motion for interlocutory appeal

Twitter asked the court to certify two issues for an interlocutory appeal under 28 U.S.C. § 1292(b). An interlocutory appeal is an appeal before the district court enters a final judgment. Twitter argued that the court should immediately review its findings that contractual disclaimers were oppressive and procedurally unconscionable when applied to nonessential, free social-media activities, and that generalized website statements could support an implied-contract claim.

The court explained that certification requires the moving party to show all three of the following: a controlling question of law, substantial ground for disagreement about that question, and that an immediate appeal could materially advance the end of the litigation. The court also emphasized that certification is reserved for exceptional circumstances and that a controlling legal question generally must be capable of being resolved without examining the particular facts of the case.

Court’s analysis

As to the implied-contract claim, the court said Twitter had not meaningfully moved to dismiss that claim in the earlier proceedings. The earlier motion relied on the same reasoning used against the express-contract claim: that plaintiffs had not identified a specific promise in the User Agreement that Twitter breached. The court stated that California law allows a contract to be inferred from documents, statements, and website representations so long as the implied terms do not vary from express terms. It also stated that, because it found no express contract concerning data security, the implied-contract claim did not contradict an express term.

The court exercised its discretion not to consider Twitter’s arguments for dismissal of the implied-contract claim because Twitter had not raised them sufficiently in the earlier motion for the court to rule on them. It also concluded that the cases Twitter cited to show disagreement were factually distinct and did not present a legal question that could be resolved without examining this case’s facts. The court further rejected Twitter’s argument that an immediate appeal would materially advance the litigation, stating that accepting that reasoning would make essentially all potentially dispositive interlocutory orders automatically appealable. The court said Twitter’s arguments showed disagreement with the court’s ruling, which was insufficient to establish a substantial ground for a difference of opinion under Section 1292(b).

Disposition

The court declined to certify the December 18, 2024 order for interlocutory appeal. Judge Kandis Westmore therefore denied Twitter’s motion to certify that order for interlocutory appeal.