'John Doe' Plaintiffs Failed to Fix Defects in Amended Pixel Complaint, Says Meta

Plaintiffs seek to resurrect five claims in their consolidated complaint against Meta in In Re Meta Pixel Healthcare Litigation, but they “have failed to remedy the defects” the court identified in its September order (see 2309080055), said the Facebook parent’s motion to dismiss (docket 3:22-cv-03580) Wednesday in U.S. District Court for Northern California in San Francisco.

“John Doe” plaintiffs in the case allege Meta uses its Pixel tracking tool to intercept individuals’ private health information (PHI), and the content of patient communications from Facebook users, then monetizes it for financial gain. In his September order, U.S. District Judge William Orrick for Northern California dismissed eight of 13 claims against Meta.

In the amended complaint, plaintiffs abandoned dismissed claims of negligence, larceny and claims under the unfair competition law, but they continue to assert intrusion upon seclusion and constitutional privacy claims, trespass and claims under Consumers Legal Remedies Act (CLRA) and Computer Data Access and Fraud Act (CDAFA).

For the privacy tort claims, plaintiffs fail to identify “specific, personal or private information they conveyed to their healthcare providers that they reasonably believe Meta received,” said Meta’s memorandum of points and authorities. They provided URLs only for public webpages that anyone with an internet connection could browse, which doesn’t meet the “high bar required to state a privacy tort,” Meta said.

The court previously held that plaintiffs didn’t identify which PHI they conveyed to their healthcare providers that they believe Meta received, said the memorandum. The court noted that there's information collected by the Pixel that doesn’t constitute sensitive, personal information, it said. Orrick said plaintiffs must describe the types of sensitive health information provided through their devices to their providers, but they could omit details to protect privacy. Though the amended complaint adds allegations about the information Meta received about them, all of the PHI “falls on the ‘unprotected’ side of the line,” it said.

For the trespass claim, plaintiffs fail to allege that functionality in their computing devices has been affected by Meta’s conduct, said the memorandum. Though plaintiffs say the Meta Pixel took up storage on their devices and increased loading time of webpages by one second, the effects are “insufficient to state the sort of property harm required for a trespass claim,” it said. “The sort of harm required for a trespass claim is a ‘significant reduction in service constituting an interference with the intended functioning of the system,'” Meta said, citing In re iPhone Application Litigation.

On the CLRA claim, plaintiffs still don’t plead facts regarding reliance on Meta’s alleged misrepresentations, said the motion. Instead, they make “generalized allegations about their exposure to a broadly defined ‘advertising campaign’ about ‘privacy,’ but never plead with particularity that they relied on any statement they allege was misleading,” said the memorandum.

In their CDAFA claim, plaintiffs fail to plead a “theory of impairment of their computing devices,” nor do they allege that the Pixel caused their devices to lose any functionality,” said the memorandum. Orrick granted leave to amend for plaintiffs to plead a different theory of impairment of their computing devices, but they still fail to do so, said Meta. Plaintiffs allege that Pixel “occupied storage space on their computing devices,” “caused the computing devices to work slower,” and “used the computing resources of [their] computing devices,” and that Meta “unjustly profited from the data,” but “none of this states any technological damage, loss, or impairment of plaintiffs’ devices,” it said.