Khamooshi v. Politico LLC

Background

Saber Khamooshi, Ryan Wu, Brian Carolus, and John Deddeh brought a putative class action against Politico LLC. They alleged that Politico embedded third-party trackers on www.Politico.com that collected their information without consent for advertising and analytics. Their five California-law claims arose under the California Computer Data Access and Fraud Act, the California Invasion of Privacy Act, the California Constitution’s privacy provision, unjust enrichment, and California’s Unfair Competition Law.

Politico filed a second motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), which governs challenges to subject-matter jurisdiction, including Article III standing. Politico also argued that the complaint failed to state a claim. The court had previously dismissed the first amended complaint for lack of standing and allowed the plaintiffs to amend.

Standing analysis

Article III standing requires a plaintiff to allege an injury that is concrete, particularized, and actual or imminent, that the defendant likely caused, and that judicial relief would likely remedy. The court focused on whether the plaintiffs had alleged a concrete injury.

The plaintiffs relied on alleged invasion of privacy and economic harm. They alleged that Politico disclosed IP addresses, browser and device data, browsing activity, geolocation information, device type, browser type, device fingerprints, and other identifying information.

The court held that these allegations did not establish a concrete privacy injury. To support standing based on privacy, the plaintiffs needed to identify specific information whose disclosure was sufficiently similar to traditionally recognized privacy harms. The court found that the allegations about device type, browser type, device fingerprints, browsing activity, and geolocation were not specific enough. It also noted that some kinds of browsing or location information may implicate privacy interests, but the plaintiffs had not alleged enough detail about the information allegedly disclosed.

The court also rejected the economic-harm theories. The second amended complaint did not add facts plausibly showing that Politico was unjustly enriched. The plaintiffs’ assertion that user data has financial value did not show that the data had independent economic value to individual users, or that Politico’s conduct prevented them from earning money through web-browsing studies. The court therefore concluded that the plaintiffs had not alleged an economic injury sufficient for standing.

Disposition

The court granted Politico’s second motion to dismiss for lack of Article III standing. Because the plaintiffs lacked standing, the court did not reach Politico’s alternative arguments concerning the sufficiency of the claims. The court had already allowed one amendment and found that further amendment would be futile, so it dismissed the case with prejudice.

Because the court lacked subject-matter jurisdiction and all claims were based on state law, it ordered the case remanded to the Superior Court of California for the County of San Francisco. The clerk was instructed to transfer the file.