Case Against Flo Health Narrowed in Dismissal Order

District Judge James Donato has narrowed the charges Flo Health Inc and other defendants will have to face in a privacy case . The Stored Communications Act claim against Flo; the Unjust Enrichment charges against Facebook, Google, and Flurry; and all charges against AppsFlyer have been dismissed with leave to appeal. 

In a judicial order, Judge Donato took up the defendants’ arguments that the case should be dismissed. He ruled that the plaintiffs do have Article III standing due to their own sensitive personal information being allegedly shared with advertisers through software development kits.

All charges against AppsFlyer were dismissed on account of the plaintiffs’ inability to clearly define what AppsFlyer did with their allegedly shared data. Thus the court could not determine a concrete and particularized injury caused by AppsFlyer.

Flo and the other defendants also sought dismissal on the account of the statute of limitations. They argued that since the public became aware of Flo App, and other apps, sharing their private data with advertisers in a February 2019 article, the statute of limitations had passed. Judge Donato disagreed, citing Unruh-Haxton v. Regents of Univ. of Cal. in which the court ruled that public awareness through media coverage alone does not create constructive suspicion for purposes of discovery. The defendants could, though, use this defense at a later stage of the suit, in light of new evidence found at discovery.

Judge Donato further ruled that the plaintiffs did not plausibly allege that Flo Health was an electronic communication service provider under the Stored Communications act. Therefore that claim, in regards to Flo, was dismissed with leave to amend.

Finally, it was ruled that since the complaint did not indicate that the non-Flo defendants received a direct benefit from the plaintiffs, the unjust enrichment claim against Facebook, Google, and Flurry was dismissed with leave to amend. The plaintiffs, represented by WVBR, Lowey Dannenberg, Labaton Sucharow, have until June 23 to file an amended complaint. The defendants are represented by  Dechert LLP.