Case 3:22-cv-03173-SK Document 50 Filed 12/06/22 Page 1 of 10
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`LAUREN PRICE,
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`Plaintiff,
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`v.
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`TWITTER, INC.,
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`Defendant.
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`Case No. 22-cv-03173-SK
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`ORDER ON MOTION TO DISMISS
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`Regarding Docket Nos. 29, 30
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`This matter comes before the Court upon consideration of Twitter, Inc.’s motion to
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`dismiss. Having carefully considered the parties’ papers, relevant legal authority, and the record
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`in the case, and having had the benefit of oral argument, the Court hereby grants Twitter’s motion
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`for the reasons set forth below. The Court GRANTS Twitter’s request for judicial notice. Fed. R.
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`Evid. 201.
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`BACKGROUND
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`Plaintiff Lauren Price brings this putative class action against Twitter related to Twitter’s
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`disclosure of Plaintiff’s and the purported class’s telephone numbers and email addresses
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`(“personal information”). (Dkt. No. 1 (Compl.), ¶ 3.) Plaintiff alleges that Twitter disclosed her
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`personal information for advertising and marketing purposes. (Id.) Twitter collected Plaintiff’s
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`personal information under the guise that it would be used for security related functions, such as
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`two-factor authentication and account recovery. (Id., ¶ 4.) However, Twitter also used this
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`personal information for its marketing products, enabling advertisers to target specific groups of
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`Twitter users by matching telephone numbers and email addresses that Twitter had collected to the
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`advertisers’ own existing or purchased lists of telephone numbers and email addresses. (Id., ¶ 5.)
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`Commercial entities regularly use Twitter to advertise to consumers. Of the $3.4 billion in
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`revenue that Twitter earned in 2019, $2.99 billion was from advertising. (Id., ¶ 24.) While
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`Case 3:22-cv-03173-SK Document 50 Filed 12/06/22 Page 2 of 10
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`Twitter represented to users, including Plaintiff, that it collected users’ telephone numbers and
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`email addresses to secure their accounts, Twitter failed to disclose that it also used their personal
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`information to aid advertisers in reaching their preferred audiences. (Id., ¶ 27.) Twitter’s
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`misrepresentations violate an order from the Federal Trade Commission issued in 2011, which
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`specifically prohibited Twitter from making misrepresentations regarding the security of
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`nonpublic consumer information such as their emails and phone numbers. (Id., ¶ 28.)
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`The International Trade Administration of the U.S. Department of Commerce (the
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`“Commerce Department”) coordinated with the European Commission and the Swiss
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`Administration to craft Privacy Shield Frameworks for commercial data transfers. (Id., ¶ 56.)
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`Companies self-certify and annually affirm to the Commerce Department that they complied with
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`the Privacy Shield Principles, including that “[a]n organization may not process personal
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`information in a way that is incompatible with the purposes for which it has been collected or
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`subsequently authorized by the individual.” (Id., ¶ 57.) A company under the FTC’s jurisdiction
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`that self-certified to the Privacy Shield Principles, but failed to comply with the Privacy Shield,
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`may be subject to an enforcement action based on the FTC’s deception authority under Section 5
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`of the FTC Act. (Id., ¶ 58.) On November 16, 2016, Twitter self-certified its participation in the
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`Privacy Shield and has reaffirmed its participation in the Privacy Shield to the Commerce
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`Department each year thereafter. (Id., ¶ 60.)
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`Twitter states in its Terms of Service:
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`(https://www.twitter.com/privacy)
`Policy
`“Privacy
`Twitter’s
`describes how we handle the information you provide to us when you
`use our Services. You understand that through your use of the
`Services you consent to the collection and use (as set forth in the
`Privacy Policy) of this information . . .
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`(Id., ¶ 64.) Twitter’s Privacy Policy in turn states:
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`We believe you should always know what data we collect from you
`and how we use it, and that you should have meaningful control over
`both. We want to empower you to make the best decisions about the
`information that you share with us.
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`(Dkt. No. 29-3 (Privacy Policy attached as Ex. B to the Declaration of Susan B. Engel), p. 1.)
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`When you use Twitter, even if you’re just looking at Tweets, we
`receive some personal information from you like the type of device
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`Case 3:22-cv-03173-SK Document 50 Filed 12/06/22 Page 3 of 10
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`(Id., p. 2.)
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`you’re using and your IP address. You can choose to share additional
`information with us like your email address, phone number, address
`book contacts, and a public profile. We use this information for things
`like keeping your account secure and showing you more relevant
`Tweets, people to follow, events, and ads.
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`We give you control through your settings to limit the data we collect
`from you and how we use it, and to control things like account
`security, marketing preferences, apps that can access your account,
`and address book contacts you’ve uploaded to Twitter. You can also
`download information you have shared on Twitter.
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`We use your contact information, such as your email address or phone
`number, to authenticate your account and keep it - and our services -
`secure, and to help prevent spam, fraud, and abuse. We also use
`contact information to enable certain account features (for example,
`for login verification or Twitter via SMS), and to send you information
`about our services, and to personalize our services, including ads. . .
`.
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`(Id., § 1.3 (emphasis added).)
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`We share or disclose your personal data with your consent or at your
`direction, such as when you authorize a third-party web client or
`application to access your account or when you direct us to share your
`feedback with a business . . . .
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`Subject to your settings, we also provide certain third parties with
`personal data to help us offer or operate our services. You can learn
`more about these partnerships in our Help Center, and you can control
`whether Twitter shares your personal data in this way by using the
`“Allow additional information sharing with business partners” option
`in your Personalization and Data settings. (This setting does not
`control sharing described elsewhere in our Privacy Policy, such as
`when we share data with our service providers, or through
`partnerships other than as described in our Help Center.)
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`(Id., § 3.1.)
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`Plaintiff alleges that Twitter violated its Privacy Policy because Plaintiff and the purported
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`class members did not “know what data” Twitter “collect[ed] from [them] and how we use[d] it,”
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`because Plaintiff and purported class members did not have “have meaningful control over both,”
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`because Twitter did not give its users “control through [their] settings to limit the data we collect
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`from you and how we use” it, and because Twitter did “share or disclose [users’] personal data”
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`without their “consent or at [users’] direction. (Dkt. No. 1, ¶ 68.)
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`Based on these allegations, Plaintiff brings the following four claims against Twitter: (1)
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`breach of contract; (2) breach of the implied contract; (3) violation of California’s Unfair
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`Case 3:22-cv-03173-SK Document 50 Filed 12/06/22 Page 4 of 10
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`
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`Competition Law (“UCL”), California Business & Professions Code § 17200; and (4) unjust
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`enrichment.
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`A.
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`Applicable Legal Standard on Motion to Dismiss.
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`ANALYSIS
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`A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the
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`pleadings fail to state a claim upon which relief can be granted. On a motion to dismiss under
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`Rule 12(b)(6), the Court construes the allegations in the complaint in the light most favorable to
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`the non-moving party and takes as true all material allegations in the complaint. Sanders v.
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`Kennedy, 794 F.2d 478, 481 (9th Cir. 1986). Even under the liberal pleading standard of Rule
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`8(a)(2), “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
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`more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
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`will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain,
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`478 U.S. 265, 286 (1986)). Rather, a plaintiff must instead allege “enough facts to state a claim to
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`relief that is plausible on its face.” Id. at 570.
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`“The plausibility standard is not akin to a probability requirement, but it asks for more than
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`a sheer possibility that a defendant has acted unlawfully. . . . When a complaint pleads facts that
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`are merely consistent with a defendant’s liability, it stops short of the line between possibility and
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`plausibility of entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
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`Twombly, 550 U.S. at 557) (internal quotation marks omitted). If the allegations are insufficient to
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`state a claim, a court should grant leave to amend, unless amendment would be futile. See, e.g.
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`Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990); Cook, Perkiss & Lieche, Inc. v. N.
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`Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th Cir. 1990).
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`As a general rule, “a district court may not consider material beyond the pleadings in ruling
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`on a Rule 12(b)(6) motion.” Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994), overruled on
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`other grounds, Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) (citation omitted).
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`However, documents subject to judicial notice, such as matters of public record, may be
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`considered on a motion to dismiss. See Harris v. Cnty of Orange, 682 F.3d 1126, 1132 (9th Cir.
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`2011). In doing so, the Court does not convert a motion to dismiss to one for summary judgment.
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`Case 3:22-cv-03173-SK Document 50 Filed 12/06/22 Page 5 of 10
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`See Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986), overruled on other
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`grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991). “The court need
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`not . . . accept as true allegations that contradict matters properly subject to judicial notice . . . .”
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`Sprewell v. Golden State Warriors, 266 F. 3d 979, 988 (9th Cir. 2001).
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`B.
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`Twitter’s Motion to Dismiss.
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`1.
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`Injury.
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`To establish Article III standing, a plaintiff must show that he or she has suffered an
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`“injury in fact” that is “fairly traceable” to the defendant’s conduct and would likely be “redressed
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`by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)
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`(alterations and internal quotation marks omitted). “The plaintiff, as the party invoking federal
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`jurisdiction, bears the burden of establishing these elements.” Spokeo, Inc. v. Robins, 578 U.S.
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`330, 338 (2016). Moreover, “[w]here, as here, a case is at the pleading stage, the plaintiff must
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`“clearly . . . allege facts demonstrating” each element. Id. (quoting Warth v. Seldin, 422 U.S. 490,
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`518 (1975)). To allege injury in fact, a plaintiff must allege that he or she suffered “an invasion of
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`a legally protected interest” that is “concrete and particularized” and “actual or imminent, not
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`conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks omitted). “A
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`‘concrete’ injury must be ‘de facto’; that is, it must actually exist.” Spokeo, Inc., 578 U.S. at 340.
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`“[S]tanding is claim- and relief-specific, such that a plaintiff must establish Article III standing for
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`each of her claims and for each form of relief sought.” In re Carrier IQ, Inc., 78 F. Supp. 3d
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`1051, 1064-65 (N.D. Cal. 2015) (internal quotations omitted) (citing DaimlerChrysler Corp. v.
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`Cuno, 547 U.S. 332, 352 (2006) (“our standing cases confirm that a plaintiff must demonstrate
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`standing for each claim he seeks to press”)).
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`Additionally, to have standing to bring a claim under the UCL, Plaintiffs must have
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`suffered an injury in fact and must have lost money or property as a result of the unfair
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`competition. See Cal. Bus. & Prof. Code § 17204; see also Californians for Disability Rights v.
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`Mervyn’s, LLC, 39 Cal. 4th 223, 227 (2006). “To satisfy the narrower standing requirements
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`imposed by Proposition 64, a party must now (1) establish a loss or deprivation of money or
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`property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that the
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`Case 3:22-cv-03173-SK Document 50 Filed 12/06/22 Page 6 of 10
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`economic injury was the result of, i.e., caused by, the unfair business practice or false advertising
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`that is the gravamen of the claim.” Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 322 (2011)
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`(emphasis in original).
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`The California Supreme Court noted that “‘[i]njury in fact’ is a legal term of art . . . for
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`federal standing under [A]rticle III. . . .” Kwikset, 51 Cal. 4th at 322. By selecting this phrase in
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`Proposition 64, “the drafters and voters intended to incorporate the established federal meaning.”
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`Id. While Article III standing may be premised on a non-economic injury, such as invasion of
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`privacy, Plaintiff has not yet alleged such an injury. Therefore, the Court will evaluate standing
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`under Article III and the UCL together.1
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`“Numerous courts have held that disclosure of personal information alone does not
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`constitute economic or property loss sufficient to establish UCL standing, unless the plaintiff
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`provides specific allegations regarding the value of the information.” Mastel v. Miniclip SA, 549
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`F. Supp. 3d 1129, 1144-45 (E.D. Cal. 2021) (citing In re Yahoo! Inc. Customer Data Sec. Breach
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`Litig., 2017 WL 3727318, *22 (N.D. Cal. Aug. 30, 2017) (rejecting UCL standing to victims of
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`data breach who had failed to allege specific benefit-of-the-bargain losses or out-of-pocket
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`expenses); In re Facebook Privacy Litig., 791 F. Supp. 2d 705, 714 (N.D. Cal. 2011), aff’d 572 F.
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`App’x 494 (9th Cir. 2014) (“A plaintiff’s ‘personal information does not constitute property under
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`the UCL.”); Archer v. United Rentals, Inc., 195 Cal. App. 4th 807, 816 (2011) (dismissing UCL
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`invasion of privacy claim because “plaintiffs have failed to demonstrate how . . . unlawful
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`collection and recordation of personal information . . . translates into a loss of money or
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`property”)); see also Cottle v. Plaid Inc., 536 F. Supp. 3d 461, 484 (N.D. Cal. Apr. 30, 2021)
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`1 In light of Plaintiff’s failure to allege that Twitter disclosed her phone number and/or
`email to advertisers and that she alleges advertisers already had or were able to purchase her phone
`number and email from other sources, it is not clear that she could plead an invasion of her privacy
`rights based on Twitter’s conduct. Additionally, at least one court has questioned whether a
`plaintiff could allege an invasion of privacy from disclosure of basic contact information. See I.C.
`v. Zynga, Inc., 2022 WL 2252636, at *8 (N.D. Cal. Apr. 29, 2022) (“the Court is hard pressed to
`conclude that basic contact information, including one’s email address, phone number, or
`Facebook or Zynga username, is private information. All of this information is designed to be
`exchanged to facilitate communication and is thus available through ordinary inquiry and
`observation.”). Nevertheless, as discussed below, the Court provides Plaintiff with an opportunity
`to amend her complaint.
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`Case 3:22-cv-03173-SK Document 50 Filed 12/06/22 Page 7 of 10
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`(rejecting theory of economic injury based on “loss of the inherent value of . . . personal data”);
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`Campbell v. Facebook, Inc., 77 F. Supp. 3d 836, 849 (N.D. Cal. 2014) (noting that courts “have
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`consistently rejected” a broad interpretation of “money or property” that would include personal
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`information); Claridge v. RockYou, Inc., 785 F. Supp. 2d 855, 862-63 (N.D. Cal. 2011) (rejecting
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`plaintiff’s allegation that his personal information constitutes a form of money or property
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`sufficient to state a UCL claim).
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`The discussion in the recent California case Moore v. Centrelake Med. Grp., Inc., 83 Cal.
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`App. 5th 515 (2022) is instructive. The court in Moore held that the lost value of personal
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`identifying information (“PII”) was insufficient to support standing for a UCL claim. First, the
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`court noted that the plaintiffs’ allegations were not supported where they:
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`pled only that their PII was stolen and disseminated, and that a market
`for it existed. They did not allege they ever attempted or intended to
`participate in this market, or otherwise to derive economic value from
`their PII. Nor did they allege that any prospective purchaser of their
`PII might learn that their PII had been stolen in this data breach and,
`as a result, refuse to enter into a transaction with them, or insist on
`less favorable terms.
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`Id., 83 Cal. App. 5th at 538-39 (citing In re Google Inc. Cookie Placement Consumer Privacy
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`Litigation (3d Cir. 2015) 806 F.3d 125, 149, 152 (“when it comes to showing ‘loss,’ the plaintiffs’
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`argument lacks traction. They allege no facts suggesting that they ever participated or intended to
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`participate in the market they identify, or that the defendants prevented them from capturing the
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`full value of their internet usage information for themselves”); Bass v. Facebook, Inc., 394 F.
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`Supp. 3d 1024, 1040 (N.D. Cal. 2019) (“That the information has external value, but no economic
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`value to plaintiff, cannot serve to establish that plaintiff has personally lost money or property”)).
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`The court similarly rejected the theory of loss of PII to support an award of contractual
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`damages. Id., 83 Cal. App. 5th at 539. The court found the analysis in In re Jetblue Airways
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`Corp. Priv. Litig., 379 F. Supp. 2d 299 (E.D.N.Y. 2005) persuasive, in which the court found that
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`the plaintiffs had “‘ignore[d] the nature of the contract asserted,’ under which appellants had no
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`expectation interest in the economic value of their PII.” Moore, 83 Cal. App. 5th at 539. The
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`court also found Pruchnicki v. Envision Healthcare Corporation, 845 Fed. Appx. 613 (9th Cir.
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`2021), persuasive in which “the Ninth Circuit affirmed dismissal of a breach of contract claim
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`where, despite studies showing PII ‘may have value in general,’ the plaintiff failed to adequately
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`allege that as a result of a data breach, her PII ‘actually lost value.’” Moore, 83 Cal. App. 5th at
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`540 (citing LaCourt v. Specific Media, Inc., 2011 WL 1661532, at *5 (C.D. Cal. Apr. 28, 2011)
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`(no Article III standing where plaintiffs failed to allege they personally “ascribed an economic
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`value” to their internet-history information or were “foreclosed from entering into a ‘value-for-
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`value exchange’ as a result of [defendant’s] alleged conduct”).
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`Plaintiff alleges that, between May 2013 and September 2019, she provided her telephone
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`numbers and/or email addresses to Twitter for two-factor authentication, account recovery, and/or
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`account re-authentication. (Dkt. No. 1, ¶ 9.) It is not even clear if Plaintiff accuses Twitter of
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`using both her phone number and email address or whether she provided her phone number and/or
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`email address in the context of two-factor authentication, account recovery, or account re-
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`authentication. Moreover, as discussed at the hearing, it is not even clear if Twitter disclosed
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`Plaintiff’s email address or telephone number to advertisers or simply matched Plaintiff’s email
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`address or telephone number to lists the advertisers provided. In terms of injury, Plaintiff vaguely
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`alleges she “suffered harm in the form of diminution of the value of [her] private and personally
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`identifiable data and content []” from Twitter’s unauthorized disclosure and use of her telephone
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`number or email address. (Id., ¶ 108.) She also vaguely alleges that her telephone number and/or
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`email address “has value as demonstrated by its use for targeted advertising by Twitter.” (Id.)
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`However, Plaintiff has not alleged that she could sell her phone number and email address or that
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`it otherwise has economic value to her, as opposed to the value that Twitter gained by aggregating
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`that data. The Court finds that Plaintiff fails to allege any concrete injury to show an injury in fact
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`due to Twitter’s use of her phone number and/or email address.
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`Plaintiff’s breach of contract claim requires further explanation. Plaintiff argues that actual
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`injury, apart from a breach, is not necessary to have standing to bring a breach of contract claim
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`because California law allows for nominal damages. In Spokeo, the Supreme Court made clear
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`that a statutory violation, divorced from any concrete harm, was insufficient to satisfy the injury-
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`in-fact requirement of Article III. Spokeo, 578 U.S. at 341. Courts in this District, both relying on
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`Spokeo, are split on whether the allowance of nominal damages under California law satisfies
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`Article III standing requirements to demonstrate an injury in fact. Compare Svenson v. Google
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`Inc., 2016 WL 8943301, at *10 (N.D. Cal. Dec. 21, 2016) (finding under Spokeo, Inc., 578 U.S. at
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`339-43 “that although California law permits recovery of nominal damage when it is difficult to
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`quantify the amount of damages flowing from a particular injury, a plaintiff still must show the
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`fact of injury in order to have Article III standing. The potential availability of nominal damages
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`once an injury has been established does not satisfy Article III.”) (emphasis in original) with In re
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`Google Referrer Header Priv. Litig., 465 F. Supp. 3d 999, 1010-11 (N.D. Cal. 2020) (“An
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`individual to whom a contractual duty is owed may, therefore, allege a concrete legal injury by
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`virtue of the duty’s breach, apart from any actual damages stemming from that breach[]” and is
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`sufficient to establish Article III standing under Spokeo.). However, the court in In re Google
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`relied on a concurring opinion which the Supreme Court later clarified what it had rejected. See
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`TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2207 n.3 (2021) (J. Thomas “would reject the core
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`standing principle that a plaintiff must always have suffered a concrete harm, and would cast aside
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`decades of precedent articulating that requirement. . .”). TransUnion made clear that “under
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`Article III, an injury in law is not an injury in fact.” Id., 141 S. Ct. at 2205. “Only those plaintiffs
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`who have been concretely harmed by a defendant’s statutory violation may sue that private
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`defendant over that violation in federal court.” Id. (emphasis in original). A breach of contract
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`without any concrete harm is akin to a statutory violation without any concrete harm. The fact
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`California has authorized nominal damages under such circumstances does not alter the Article III
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`standing analysis under Spokeo and TransUnion. Accordingly, the Court finds that Plaintiff has
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`not sufficiently alleged an injury-in-fact for her breach of contract claim as well. Therefore, the
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`Court GRANTS Twitter’s motion to dismiss WITH LEAVE TO AMEND.
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`A brief discussion of some of Plaintiff’s additional deficiencies, below, is helpful to
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`provide Plaintiff with some guidance for amendment.
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`First, the “promise” or language which Plaintiff alleges Twitter breached is in Twitter’s
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`Privacy Policy. However, the same Privacy Policy also discloses that Twitter would use
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`Plaintiff’s email address and phone number, as well as other information, to show Plaintiff more
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`relevant advertisements and would provide Plaintiff an opportunity to opt out of Twitter’s use of
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`9
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`Northern District of California
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`United States District Court
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`

`

`Case 3:22-cv-03173-SK Document 50 Filed 12/06/22 Page 10 of 10
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`her personal information. Plaintiff’s arguments at oral argument as to why these disclosures and
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`opportunities to opt out were immaterial to her claims were unclear.
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`Second, although a plaintiff may plead inconsistent theories of recovery, such as claims
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`alleging both the existence and the absence of an enforceable contract “a plaintiff may not plead
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`the existence of an enforceable contract and simultaneously maintain a quasi-contract claim unless
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`the plaintiff also pleads facts suggesting that the contract may be unenforceable or invalid.”
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`Saroya v. Univ. of the Pac., 503 F. Supp. 3d 986, 998 (N.D. Cal. 2020). If Plaintiff elects to
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`amend her complaint and seeks to bring an implied contract claim as well as an express contract
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`claim, she should clearly allege in the alternative facts which suggest the contract may be
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`unenforceable or invalid.
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`Third, to the extent Plaintiff seeks equitable relief, she must allege facts to support her
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`contention that she lacks an adequate remedy at law.
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`CONCLUSION
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`For the foregoing reasons, the Court GRANTS Twitter’s motion to dismiss WITH LEAVE
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`TO AMEND. Plaintiff shall file her amended complaint, if any, by no later than December 29,
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`2022.
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`IT IS SO ORDERED.
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`Dated: December 6, 2022
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`______________________________________
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`SALLIE KIM
`United States Magistrate Judge
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