Case 3:21-cv-00757-JD Document 158 Filed 06/06/22 Page 1 of 3
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`ERICA FRASCO, et al.,
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`Plaintiffs,
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`v.
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`FLO HEALTH, INC., et al.,
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`Defendants.
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`Case No. 3:21-cv-00757-JD
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`ORDER RE MOTIONS TO DISMISS
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`Defendant Flo Health’s motion to dismiss the consolidated complaint is granted for the
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`Stored Communications Act claim and denied for all other claims. Dkt. No. 64 (complaint); Dkt.
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`No. 93 (motion). The non-Flo defendants’ (Facebook, Inc., Google LLC, and Flurry, Inc.) motion
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`is granted for the unjust enrichment claim and denied for all other claims. Dkt. No. 93. The
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`claims against AppsFlyer, Inc., which joined the non-Flo defendants’ motion, are dismissed in
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`toto.
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`1. Article III Standing. Named plaintiffs have Article III standing to sue because they
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`plausibly alleged the disclosure of private information and intrusion upon seclusion. See, e.g.,
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`Dkt. No. 64 ¶¶ 5-16, 136, 262; Heeger v. Facebook, Inc., No. 18-cv-6399-JD, 2019 WL 7282477,
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`at *1 (N.D. Cal. Dec. 27, 2019). The well-pleaded factual allegations include, among others: (1)
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`Flo knowingly disclosed sensitive health information to the non-Flo defendants and other parties
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`through software development kits (SDKs) (Dkt. No. 64 at ¶ 14); (2) the SDKs provided this
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`information to the non-Flo defendants when certain app events occurred (id. at ¶¶ 140-42); and (3)
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`the non-Flo defendants used the information for research, development, marketing, and advertising
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`purposes (id. at ¶¶ 128, 149).
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`Case 3:21-cv-00757-JD Document 158 Filed 06/06/22 Page 2 of 3
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`2. AppsFlyer. In distinction to Facebook, Google, and Flurry, which are alleged to
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`“maintain an extensive marketing and advertising practice,” Dkt. No. 64 at ¶ 149, defendant
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`AppsFlyer is not said to have used the data collected from the Flo App for advertising and
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`marketing purposes. Plaintiffs say only that AppsFlyer used the data provided to it through its
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`SDK for “AppsFlyer’s own purposes,” without any specificity of what those purposes were. Id. at
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`¶ 108. Consequently, plaintiffs have not adequately alleged a concrete and particularized injury
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`caused by AppsFlyer, and so plaintiffs lack standing to sue it. The claims against AppsFlyer are
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`dismissed with leave to amend.
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`3. Statute of Limitations. Flo and the non-Flo defendants say that the case is time barred
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`because plaintiffs knew or should have known of their claims no later than the publication of a
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`Wall Street Journal article in February 2019, but did not file this lawsuit until over two years later.
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`Dkt. No. 93 at 5 (Flo); Dkt. No. 86 at 8 (non-Flo). The point is not well taken. Under the
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`discovery rule, accrual of a cause of action, which typically happens when the wrongful conduct
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`occurs, is postponed “until the plaintiff discovers, or has reason to discover, the cause of action.”
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`Unruh-Haxton v. Regents of Univ. of Cal., 162 Cal. App. 4th 343, 358 (2008). California law is
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`clear that “public awareness of a problem through media coverage alone” does not create
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`“constructive suspicion for purposes of discovery.” Id. at 364. Plaintiffs also allege that Flo did
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`not notify its users of any privacy concerns until July 2021, after reaching a settlement with the
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`FTC, Dkt. No. 64 at ¶ 231-32, at which time they became aware of their claims, id. at ¶ 243.
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`Nothing on the face of the complaint indicates that plaintiffs knowingly waited too long to file this
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`action.
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`It may be that discovery yields facts that might support a limitations defense. This is why
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`statute of limitations disputes are “rarely appropriate for resolution at the motion to dismiss stage.”
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`Beier v. Int’l Bhd. of Teamsters, No. 18-CV-06632-JD, 2020 WL 1929225, at *3 n.1 (N.D. Cal.
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`Apr. 21, 2020). Defendants may raise the defense later in the case as warranted by the record.
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`4. Stored Communications Act. The Stored Communications Act (SCA) claim is
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`dismissed with leave to amend. The complaint does not plausibly allege that Flo was an electronic
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`communication service provider within the meaning of the SCA. An “electronic communication
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`Case 3:21-cv-00757-JD Document 158 Filed 06/06/22 Page 3 of 3
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`service is “any service which provides to users thereof the ability to send or receive wire or
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`electronic communications.“ 18 U.S.C. § 2510(15). The complaint did not allege facts showing
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`this to be true of Flo.
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`5. Unjust Enrichment Against Non-Flo Defendants. The unjust enrichment claim against
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`the non-Flo defendants is dismissed with leave to amend. Unjust enrichment applies when
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`“plaintiffs, having no enforceable contract, nevertheless have conferred a benefit on defendant
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`which defendant has knowingly accepted under circumstances which make it inequitable for the
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`defendant to retain the benefit without paying for its value.” Lebrun v. CBS Television Studios,
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`Inc., 68 Cal. App. 5th 199, 209 (2021). Notwithstanding plaintiffs’ wholly conclusory suggestion
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`to the contrary, see Dkt. No. 64 at ¶ 316, the complaint indicates that Facebook, Google, and
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`Flurry did not receive a benefit from plaintiffs. No relationship between plaintiffs and the non-Flo
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`defendants is plausibly alleged, nor is it plausibly alleged that plaintiffs conferred an unjust benefit
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`on them.
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`6. Requests for Judicial Notice. All of defendants’ requests for judicial notice of
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`ostensible facts well outside the complaint are denied. Dkt. Nos. 87, 94; Khoja v. Orexigen
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`Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018).
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`CONCLUSION
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`For the claims dismissed with leave to amend, plaintiffs may file an amended complaint on
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`those claims only by June 23, 2022. No new claims or parties may be added without the Court’s
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`prior approval. A failure to meet this deadline will result in a dismissal of the claims with
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`prejudice under Federal Rule of Civil Procedure 41(b). In all other respects, dismissal is denied.
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`IT IS SO ORDERED.
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`Dated: June 6, 2022
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`JAMES DONATO
`United States District Judge
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