Plaintiffs in Combined Data Privacy Case Agreed to Data Collection, Says Apple

The plaintiffs in a privacy class action, In Re Apple Data Privacy Litigation, don’t say “what data was collected from them, or what that data would have revealed,” said Apple’s reply Friday (docket 5:22-cv-07069) in U.S. District Court for Northern California in San Jose in support of its motion to dismiss.

The complaint is premised on tweets by two app developers about data collection, which Apple "thoroughly disclosed,” said the reply. Without factual allegations about their own experiences, plaintiffs can’t show Article III standing or state any claims, it said.

Apple Data Privacy Litigation alleges Apple illegally records and collects data on consumers’ mobile app activity even when the tracking feature is disabled via a device’s privacy setting (see 2306150041). Plaintiffs in the consolidated complaint are Ashley Popa, Bruce Puleo, Barry Robinson, Carlina Green, David Sgro, A.H. (a minor, with Julie Hodges serving as guardian ad litem), Dottie Nikolich, Elena Nacarino, Francis Barrott, Katie Alvarez, Jarell Brown, Julia Cima, Elizabeth Kelly, E.M. (a minor, with Daryl Marcott serving as guardian ad litem), and Quincy Venter.

In their opposition, the plaintiffs confirm that each claim in the consolidated complaint fails because they agreed to data collection by the apps at issue by using them after receiving “extensive disclosures,” said the reply. The plaintiffs don’t dispute that Apple disclosed what data it collected through Apple apps, that they had notice of the collection and still used the apps, their actions constituted consent under relevant law and consent bars all their claims, it said.

The plaintiffs responded that they thought two unrelated settings would turn off “all data collection” in the apps, said the reply. The Allow Apps to Request to Track setting controls whether apps can ask users’ permission to track them across apps and websites owned by other companies, said Apple’s reply. The other setting, Share Analytics, governs “a subset of technical performance data,” it said. Plaintiffs “cannot escape the uncontested disclosures for these two settings by advancing implausible interpretations of how the settings would function that are contradicted by the express language in the disclosures,” the reply said.

The complaint suffers, too, from other deficiencies warranting dismissal, said Apple’s reply. Contract claims can’t proceed because the plaintiffs don’t allege a breach or cognizable damages, it said. The minor plaintiffs don’t plead their ages, so they haven’t shown that Apple’s statements about children, defined as users under 13 in the U.S., apply to them, it said.

The plaintiffs also don’t adequately allege multiple elements of their wiretap and privacy claims, “underscoring the mismatch between criminal wiretapping statutes and the disclosed collection here," said the reply. And none of the plaintiffs alleges reliance with the specificity required by Rule 9(b) of the Federal Rules of Civil Procedure, which creates a heightened pleading standard for fraud claims, thus "dooming their consumer-protection claims,” it said. The complaint should be dismissed with prejudice, it said.