Ramos v. The GAP, Inc.

Background

Efren Ramos filed a putative class action against The GAP, Inc. The court had previously granted The GAP’s motion to dismiss the original complaint. Ramos then filed an amended complaint.

Ramos alleged that The GAP used Bluecore, Inc. software in marketing emails and on The GAP’s website. According to the amended complaint, the software used invisible pixels, unique URLs, JavaScript, and persistent cookies to track when customers opened emails, which images or text they clicked, their email addresses, and their activity on The GAP’s website. Ramos alleged that Bluecore used this information to create detailed customer profiles.

Ramos asserted claims under the California Invasion of Privacy Act (CIPA), California statutory larceny laws, and the California Unfair Competition Law (UCL). The GAP filed a second motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim.

CIPA Claims

The court rejected Ramos’s theories of direct liability under CIPA section 631(a). The court explained that a party to a communication generally cannot be liable under that provision as the direct wiretapper. It also found that Ramos’s theories about The GAP’s tracking of email openings and forwarded emails were either not alleged in the amended complaint or were not plausibly supported by it. The court granted the motion to dismiss to the extent Ramos sought to hold The GAP directly liable under section 631(a).

The court also held that CIPA section 631(a)’s first clause did not apply to the internet communications alleged in this case. The court rejected Ramos’s argument that a customer’s click on a URL in a marketing email was itself protected communication content. It concluded that the URLs, as alleged, functioned as tracking or routing tools and revealed information about the location or characteristics of a communication, not the communication’s intended message. The court likewise rejected the argument that Bluecore used the URLs to read the substance of the marketing emails, noting that Bluecore allegedly helped create and distribute the emails and retained visual copies of them.

Because Ramos failed to plead the interception of protected content under section 631(a), the court also granted the motion to dismiss his derivative CIPA section 635 claim.

Statutory Larceny

Ramos alleged that The GAP stole or fraudulently appropriated his and the proposed class members’ personal information without consent. The court stated that the claim required the alleged information to qualify as property capable of exclusive possession or control. The court found that Ramos offered no adequate explanation or supporting allegations showing that the email data he identified was property subject to exclusive possession or control. The court granted the motion to dismiss the statutory larceny claim.

Unfair Competition Law

The court held that Ramos’s UCL claim depended on his CIPA and statutory larceny claims. Because those claims failed, and because Ramos did not explain how the amended complaint independently alleged an unlawful or unfair practice, the court granted the motion to dismiss the UCL claim.

Disposition

The court granted The GAP’s second motion to dismiss. It dismissed the case against The GAP without leave to amend, directed the Clerk to enter judgment in favor of The GAP and against Ramos, and ordered the case closed. The opinion does not state that the court separately ruled on class certification.