Gabrielli v. Motorola Mobility LLC

Background

Jonathan Gabrielli brought a proposed class action against Motorola Mobility LLC based on alleged tracking practices on Motorola’s website. He alleged that he visited the website several times between February 2022 and January 2024, saw a cookie banner, and selected the option to reject all non-essential cookies. According to the complaint, the website nevertheless loaded third-party scripts that placed tracking cookies on his device and transmitted information to companies including Google, TikTok, Amazon, Howl Technologies, and Emplifi.

The alleged tracking information included browsing history, user inputs, demographic information, shopping behavior, referring URLs, session information, internet protocol addresses, geolocation data, and device information. Gabrielli alleged that the information was transmitted in real time and used to build behavioral profiles and provide targeted advertising. He asserted nine causes of action: invasion of privacy, intrusion upon seclusion, wiretapping under California’s Invasion of Privacy Act, use of a pen register under that Act, common-law fraud, unjust enrichment, breach of contract, breach of the implied covenant of good faith and fair dealing, and trespass to chattels. He sought damages and an injunction on behalf of himself and a proposed class of California residents who visited Motorola’s website and tried to reject non-essential cookies during the four years before the complaint was filed.

Judicial Notice and Jurisdiction

The court treated Motorola’s Website Privacy Statement as incorporated into the complaint because the complaint expressly relied on it. The court declined to incorporate Motorola’s Terms of Use because the complaint did not refer to them and the Privacy Statement did not mention them. The court took notice of the existence of a California bill analysis and a separate state-court complaint, but not the truth of statements in those documents.

The court rejected Motorola’s argument that Gabrielli lacked standing, meaning a sufficient personal injury to invoke federal jurisdiction. The complaint alleged that Motorola ignored his rejection of cookies and deprived him of control over information about his digital activity. The court held that these allegations were enough at the pleading stage to show a concrete privacy injury. The court also rejected Motorola’s argument that Gabrielli was a “tester,” because the complaint alleged that he visited the website to browse information about Motorola’s products rather than to seek privacy violations.

The court also held that it had specific personal jurisdiction over Motorola. It found that Gabrielli adequately alleged that Motorola purposefully directed conduct toward California, including by referring specifically to California privacy law in its Website Privacy Statement and collecting internet protocol and geolocation data. The claims arose from or related to Motorola’s alleged targeting of California users and collection of their data. Motorola did not contest that exercising jurisdiction would be reasonable if the other requirements were met.

Claims Under Rule 12(b)(6)

A Rule 12(b)(6) motion asks whether the complaint states a legally sufficient claim, assuming its factual allegations are true. The court denied dismissal of Gabrielli’s invasion-of-privacy and intrusion-upon-seclusion claims. It held that the complaint alleged enough facts to prevent deciding at the pleading stage whether the alleged tracking was highly offensive, whether the cookie use was intentional rather than the result of a malfunction, and whether Motorola’s cookies actually collected the described information.

The court denied dismissal of the California Invasion of Privacy Act wiretapping claim under California Penal Code section 631(a). Gabrielli alleged that Motorola aided third parties in collecting his information, and the court found that the complaint sufficiently alleged intentional conduct. The court also rejected Motorola’s argument that it could not be liable for eavesdropping on its own communications because the alleged tracking involved Gabrielli’s activity and information outside Motorola’s website.

The court denied dismissal of Gabrielli’s claim under California Penal Code section 638.51, which concerns pen registers. The court held that the statute’s definition was not limited to telephone technology and could encompass internet browser tracking tools. It also found that Motorola had not established that a statutory exception for providers of electronic or wire communication services applied.

The court dismissed the breach-of-contract claim because Gabrielli did not adequately allege actual damages. His theory that he received services worth less than described in the Privacy Statement was insufficient because he did not allege that he paid for access to Motorola’s website. The court dismissed the implied-covenant claim for the same defective damages allegations and because Gabrielli did not oppose Motorola’s argument that the claim duplicated the contract claim.

The court denied dismissal of the fraud and misrepresentation claim. It held that Gabrielli sufficiently identified the alleged misrepresentation—the “Reject All non-essential cookies” option—and adequately alleged who made it, when and where it was made, and how Motorola allegedly misrepresented its cookie practices. The court again rejected Motorola’s argument that any continued cookie use resulted from a good-faith error because that argument depended on facts outside the complaint.

The court dismissed the trespass-to-chattels claim. Gabrielli alleged that the cookies reduced storage, disk space, and device performance and reduced the value of users’ devices, but the court found those allegations too conclusory and unsupported by facts showing cognizable damage.

The court declined to dismiss the unjust-enrichment claim on the ground that an express contract covered the parties’ rights. Because the court had dismissed the contract claim, and because plaintiffs may plead inconsistent theories at the pleading stage under the circumstances described by the court, the unjust-enrichment claim remained in the case.

Motion to Strike and Disposition

Motorola asked the court to strike the proposed class allegations under Federal Rules of Civil Procedure 12(f) and 23. The court denied that motion. It held that this was not an exceptional case for removing class allegations before discovery and that Motorola’s arguments were better addressed at the class-certification stage.

The court granted in part and denied in part Motorola’s motion to dismiss. It dismissed Gabrielli’s claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and trespass to chattels, with leave to amend. It denied the remainder of Motorola’s motion to dismiss and denied Motorola’s motion to strike. Gabrielli was permitted to file an amended complaint within 21 days, solely to cure the deficiencies identified in the order.