Frasco v. Flo Health, Inc.

Background

The order resolves summary-judgment motions filed by Flo and Meta. Summary judgment is a decision without a trial when the record shows no genuine dispute requiring a jury’s decision on the issue involved. The plaintiffs asserted claims concerning Flo’s collection and transmission of app data, including Custom Event data, and Meta’s alleged involvement.

Meta’s Motion

The court granted summary judgment to Meta on the federal Wiretap Act claim. Under that statute, there is no liability if one party to the communication gave prior consent, and the undisputed record showed that Flo consented to Meta’s data-collection practices.

The court denied summary judgment on the California Invasion of Privacy Act claims. It identified factual disputes concerning the scope of consent, the timing of Meta’s alleged interception or eavesdropping, Meta’s intent, and whether the interception occurred while communications were being transmitted. The California Invasion of Privacy Act claim under section 632 will proceed on a classwide basis for the California subclass, while the section 631 claim will proceed only for plaintiffs Wellman, Chen, and Gamino.

The court granted summary judgment on the California Comprehensive Computer Data Access and Fraud Act claim. The plaintiffs relied on proposed expert David Hoffman to show that Custom Event data had financial value to Flo app users and that its transmission caused damage or loss. Because Hoffman was excluded from testifying under Federal Rule of Evidence 702 and the plaintiffs offered no alternative non-speculative basis for proving damage or loss, the claim could not proceed against the named plaintiffs.

The court granted summary judgment on the individual named plaintiffs’ claim that Meta aided and abetted Flo’s intrusion upon seclusion. It also granted summary judgment on the unfair-competition claim, with the named plaintiffs’ agreement.

Flo’s Motion

The court denied Flo’s request for summary judgment on the ground that all claims were time-barred. A jury will need to decide whether Flo’s privacy disclosures gave users constructive notice of the alleged misconduct. The court also found evidence supporting a possible finding that the plaintiffs did not learn about the alleged misconduct until January 2021 and identified factual issues concerning fraudulent concealment.

The court rejected Flo’s request to enforce the class waiver in its terms of use for the reasons given in the certification order.

With the named plaintiffs’ agreement, the court granted summary judgment on their implied-contract and unfair-competition claims. It also granted summary judgment on the named plaintiffs’ unjust-enrichment claim to the extent it was asserted as an independent cause of action because it overlapped with their other substantive claims. The court did not grant judgment on equitable remedies, such as disgorgement, when pursued under other claims; it found factual disputes concerning whether legal remedies were adequate.

The court denied summary judgment on the Confidentiality of Medical Information Act claim. It found factual disputes about Flo’s services and practices, whether the Custom Event data was individually identifiable medical information in the possession of a health-care provider, and whether Flo was a business offering software or a mobile application designed to maintain medical information. The court also rejected Flo’s argument that the data was not medical information because it was de-identified. The claim will proceed on a classwide basis.

The court granted summary judgment on all claims asserted by plaintiff Pietrzyk because Pietrzyk began using the Flo app after the class period and the plaintiffs did not defend those claims.

Disposition

Summary judgment was granted to Meta on the named plaintiffs’ claims under the California computer-data statute, the federal Wiretap Act, aiding-and-abetting intrusion upon seclusion, and unfair competition, and was denied in all other respects. Summary judgment was granted to Flo on all claims asserted by Pietrzyk and was denied in all other respects, subject to the specific grants described above. The request for judicial notice was denied as moot.