Case 4:21-cv-06269-PJH Document 53 Filed 02/17/22 Page 1 of 25
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`JACOB M. HEATH (SBN 238959)
`jheath@orrick.com
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`1000 Marsh Road
`Menlo Park, CA 94025-1015
`Telephone:
`+1 650 614 7400
`Facsimile:
`+1 650 614 7401
`THOMAS FU (SBN 325209)
`tfu@orrick.com
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`777 South Figueroa Street, Suite 3200
`Los Angeles, CA 90017-5855
`Telephone:
`+1 213 629 2020
`Facsimile:
`+1 213 612 2499
`ARAVIND SWAMINATHAN (admitted pro hac vice)
`aswaminathan@orrick.com
`NICOLE M. TADANO (admitted pro hac vice)
`ntadano@orrick.com
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`701 5th Avenue, Suite 5600
`Seattle, WA 98104-7097
`Telephone:
`+1 206 839 4300
`Facsimile:
`+1 206 839 4301
`Attorneys for Defendants,
`Shopify Inc. and Shopify (USA) Inc.
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`OAKLAND DIVISION
`
`Brandon Briskin, on behalf of
`himself and those similarly situated,
`Plaintiffs,
`
`v.
`Shopify Inc. and Shopify (USA) Inc.,
`Defendants.
`
`Case No. 4:21-cv-06269-PJH
`DEFENDANT SHOPIFY PAYMENTS
`(USA) INC.’S MOTION TO DISMISS
`PLAINTIFF’S SECOND AMENDED
`CLASS ACTION COMPLAINT
`Date:
`April 28, 2022
`Time:
`1:30 p.m.
`Location: Courtroom 3, 3rd Floor
`1301 Clay Street
`Oakland, California
`The Honorable Phyllis J.
`Hamilton
`
`Judge:
`
`SHOPIFY PAYMENTS’ MOTION TO
`DISMISS
`CASE NO. 4:21-CV-06269
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`Case 4:21-cv-06269-PJH Document 53 Filed 02/17/22 Page 2 of 25
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`NOTICE OF MOTION TO DISMISS
`PLEASE TAKE NOTICE that on April 28, 2022 at 1:30 p.m., or as soon thereafter as the
`matter may be heard in Courtroom 3 (3rd Floor) of the above-entitled court, located at 1301 Clay
`Street, Oakland, California 94612, defendant Shopify Payments (USA) Inc. (“Shopify Payments”)
`will, and hereby does, move the Court under Federal Rules of Civil Procedure 8, 12(b)(2) and
`12(b)(6) for an order dismissing the Second Amended Class Action Complaint (“SAC”) (ECF No.
`44) of Plaintiff Brandon Briskin. This motion is based on this notice, the concurrently filed
`memorandum of points and authorities, and all other facts the court may or should take notice of,
`all files, records, and proceedings in this case, and any oral argument the Court may entertain.
`STATEMENT OF RELIEF SOUGHT (CIVIL L.R. 7-2(B)(3)). Shopify Payments seeks
`an Order pursuant to Federal Rule of Civil Procedure 8(a)(2) for failure to provide adequate notice
`of the claims against it, or in the alternative, pursuant to Federal Rule 12(b)(2) for lack of personal
`jurisdiction, or in the further alternative, Federal Rule of Civil Procedure 12(b)(6) dismissing the
`SAC for failure to state a claim upon which relief can be granted.
`
`Dated: February 17, 2022
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`
`By: /s/ Jacob M. Heath
`JACOB M. HEATH
`THOMAS FU
`Attorneys for Defendants
`Shopify Payments (USA), Inc.,
`Shopify (USA), Inc. and Shopify Inc.
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`SHOPIFY PAYMENTS’ MOTION TO
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`CASE NO. 4:21-CV-06269
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`Case 4:21-cv-06269-PJH Document 53 Filed 02/17/22 Page 3 of 25
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`TABLE OF CONTENTS
`
`I.
`II.
`
`III.
`IV.
`
`B.
`
`C.
`
`Page
`NOTICE OF MOTION TO DISMISS ………………………………………………- 1 -
`STATEMENT OF ISSUES TO BE DECIDED (CIVIL L.R. 7-4(A)(3)) ...................... - 2 -
`SUMMARY OF RELEVANT FACTS .......................................................................... - 2 -
`A.
`Background Facts ................................................................................................ - 2 -
`B.
`Facts Specific to Shopify Payments .................................................................... - 7 -
`LEGAL STANDARD ..................................................................................................... - 9 -
`LEGAL ARGUMENT .................................................................................................... - 9 -
`A.
`The SAC Fails Under Rule 8 Because It Fails to Distinguish Among
`Defendants........................................................................................................... - 9 -
`This Court Lacks Jurisdiction Over Shopify Payments. ..................................... - 9 -
`1.
`This Court lacks general jurisdiction over Shopify Payments. ............... - 9 -
`2.
`This Court lacks specific jurisdiction over Shopify Payments. ............. - 10 -
`The SAC Fails to State a Claim Against Shopify Payments. ............................ - 14 -
`1.
`The SAC fails to state any claim because it pleads facts showing
`that Plaintiff consented to any data collection. ..................................... - 14 -
`The SAC fails to state an eavesdropping claim under Penal Code
`Section 631(a). ...................................................................................... - 14 -
`a.
`The SAC fails to state a claim under either clause of Section
`631(a), because it fails to plead facts showing that Shopify
`Payments was a third party to Plaintiff’s communications. ...... - 15 -
`The SAC fails to allege a violation of Section 631(a)’s first
`clause, because it fails to allege a wiretap of a telephone
`line. ............................................................................................ - 15 -
`The SAC fails to allege a violation of Section 631(a)’s
`second clause because it fails to plead facts showing that
`Shopify Payments read the “contents” of any message. ........... - 15 -
`The SAC fails to state a claim under Penal Code Section 635. ............ - 16 -
`a.
`The Section 635 claim fails because code is not a “device”
`within the meaning of the California Invasion of Privacy
`Act. ............................................................................................ - 16 -
`The Section 635 claim fails because the SAC fails to allege
`facts showing that Shopify Inc.’s code was “primarily or
`exclusively designed” for eavesdropping.................................. - 16 -
`The SAC fails to state a claim for invasion of privacy and intrusion
`upon seclusion because it does not allege facts showing that
`Shopify Payments committed an “egregious” or “highly offensive”
`privacy intrusion. .................................................................................. - 17 -
`The SAC fails to state a Penal Code Section 502 claim, because it
`fails to allege facts showing that Shopify Payments accessed
`Plaintiff’s iPhone “without permission.” ............................................. - 17 -
`SHOPIFY PAYMENTS’ MOTION TO
`i
`DISMISS
`CASE NO. 4:21-CV-06269
`
`b.
`
`c.
`
`b.
`
`2.
`
`3.
`
`4.
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`5.
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`Case 4:21-cv-06269-PJH Document 53 Filed 02/17/22 Page 4 of 25
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`6.
`
`The SAC fails to state a claim under the UCL. ..................................... - 17 -
`a.
`The SAC fails to state a claim for an “unlawful” practice. ....... - 17 -
`b.
`The SAC fails to state a claim for a “fraudulent” practice. ....... - 18 -
`c.
`The SAC fails to state a claim for an “unfair” practice............. - 18 -
`CONCLUSION ............................................................................................................. - 19 -
`
`V.
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`SHOPIFY PAYMENTS’ MOTION TO
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`CASE NO. 4:21-CV-06269
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .................................................................................................................. 9
`
`Ballard v. Savage,
`F.3d 1495 (9th Cir. 1995) ........................................................................................................ 13
`
`Baton v. Ledger,
`2021 WL 5226315 (N.D. Cal. 2021)........................................................................... 10, 11, 12
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) .................................................................................................................. 9
`
`Bravo v. Cnty. of San Diego,
`2014 WL 555195 (N.D. Cal. 2014)........................................................................................... 9
`
`Burger King Corp. v. Rudzewicz,
`471 U.S. 462 (1985) ................................................................................................................ 12
`
`Caces-Tiamson v. Equifax,
`2020 WL 1322889 (N.D. Cal. 2020)....................................................................................... 10
`
`In re Google Assistant Privacy Litig.,
`457 F. Supp. 3d 797 (N.D. Cal. 2020) .................................................................................... 15
`
`Knievel v. ESPN,
`393 F.3d 1068 (9th Cir. 2005) ................................................................................................... 3
`
`Lisa McConnell, Inc. v. Idearc, Inc.,
`2010 WL 364172 (S.D. Cal. 2010) ......................................................................................... 13
`
`Mohazzabi v. Mohazzebi,
`2019 WL 6493969 (N.D. Cal. 2019)....................................................................................... 12
`
`Pebble Beach Co. v. Caddy,
`453 F.3d 1151 (9th Cir. 2006) ................................................................................................... 9
`
`Picot v. Weston,
`780 F.3d 1206 (9th Cir. 2015) ................................................................................................. 13
`
`Speidel v. Markota,
`2021 WL 3463895 (C.D. Cal. 2021) ....................................................................................... 13
`
`Steel v. United States,
`813 F.2d 1545 (9th Cir. 1987) ................................................................................................. 11
`SHOPIFY PAYMENTS’ MOTION TO
`DISMISS
`CASE NO. 4:21-CV-06269
`
`iii
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`Case 4:21-cv-06269-PJH Document 53 Filed 02/17/22 Page 6 of 25
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`Stewart v. Screen Gems-EMI Music, Inc.,
`81 F. Supp. 3d 938 (N.D. Cal. 2015) ........................................................................................ 9
`
`Silver v. Stripe Inc.,
`2021 WL 3191752 (N.D. Cal. 2021)....................................................................................... 18
`
`Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme,
`433 F.3d 1199 (9th Cir. 2006) ................................................................................................. 10
`
`Statutes
`
`Cal. Bus. & Prof. Code § 1427 ..................................................................................................... 18
`
`Cal. Bus. & Prof. Code § 17200 ................................................................................................... 17
`
`Cal. Bus. & Prof. Code § 22575 ................................................................................................... 18
`
`Cal. Penal Code § 502 ....................................................................................................... 14, 17, 18
`
`Cal. Penal Code § 631 ....................................................................................................... 14, 15, 16
`
`Cal. Penal Code § 635 ................................................................................................. 14, 16, 17, 18
`
`Cal. Penal Code § 637 ................................................................................................................... 18
`
`Rules
`
`Fed. R. Civ. P. 8 ...................................................................................................................... 1, 2, 9
`
`Fed. R. Civ. P. 12(b)(2) ............................................................................................................... 2, 9
`
`Fed. R. Civ. P. 12(b)(6) ......................................................................................................... 2, 9, 14
`
`Other Authorities
`
`https://www.iambecoming.com/4572025/checkouts/
`5a9f0424b4812fc7195441a3ff49d5b1 ...................................................................................... 3
`
`https://www.iambecoming.com/4572025/checkouts/
`5a9f0424b4812fc7195441a3ff49d5b1?previous_step=shipping_method&
`step=payment_method .............................................................................................................. 4
`
`https://www.iambecoming.com/4572025/checkouts/
`5a9f0424b4812fc7195441a3ff49d5b1?previous_step=contact_information&
`step=shipping_method .............................................................................................................. 4
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`SHOPIFY PAYMENTS’ MOTION TO
`DISMISS
`CASE NO. 4:21-CV-06269
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`Case 4:21-cv-06269-PJH Document 53 Filed 02/17/22 Page 7 of 25
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`Plaintiff’s Second Amended Complaint (“SAC”) now draws Shopify Payments (USA) Inc.
`(“Shopify Payments”) into the action that he has previously attempted against Shopify Inc. and
`Shopify (USA) Inc. (“Shopify USA”), alleging that routine processing of commercial transactions
`on the internet constitutes several crimes. When a customer pays with a credit card—whether in a
`physical store or online—the payment information is typically sent to a payment processor (not
`processed by the merchant), and then in turn to other entities. Nevertheless, Plaintiff’s original
`lawsuit argued that because Plaintiff’s credit card information for an online transaction was
`transmitted to Shopify Inc. (not Shopify Payments or Shopify USA) for processing, rather than
`directly to the merchant who sold him athletic apparel, that processing violated California’s
`Constitution, various statutes, and the common law. In adding Shopify Payments, it is unclear what
`the SAC’s theory seems to be, given that there is no clear allegation specifying whether Plaintiff
`thinks it was Shopify Payments or else Shopify Inc. who received Plaintiff’s information as part of
`the payment processing.
`Despite adding third defendant Shopify Payments, the SAC still (like the initial Complaint
`and First Amended Complaint before it) does not differentiate between the defendants or
`specifically explain what role each supposedly played in the complained of conduct. Indeed, the
`substantive allegations—all of which are attributed to the fictitious amalgam “Shopify”—have not
`materially changed. The primary revision in the SAC is to include Shopify Payments, in addition
`to Shopify Inc. and Shopify USA, in the definition of the fictitious “Shopify,” which supposedly
`committed all of the alleged acts.
`But because the SAC does not distinguish between what Shopify Payments supposedly did
`versus what Shopify Inc. or Shopify USA supposedly did (or even, at times, what non-party Stripe
`Inc. did), the SAC’s claims fail for all the same reasons given in Shopify Inc.’s and Shopify USA’s
`Motions to Dismiss (“Shopify Inc. MTD” and “Shopify USA MTD,” respectively). As detailed in
`Shopify USA’s MTD, the SAC violates Rule 8 by failing to differentiate between—and hence to
`provide adequate notice to—Shopify Payments, Shopify Inc., and Shopify USA. And as detailed
`in Shopify Inc.’s MTD, Plaintiff’s claims fail on their merits, both because his consent to the
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`DISMISS
`CASE NO. 4:21-CV-06269
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`complained-of acts is fatal to all of his claims as pled, and because each claim independently fails
`to state a claim for relief. To facilitate the Court’s review and because those arguments are
`addressed fully in Shopify USA’s and Shopify Inc.’s briefs—and because the SAC does not
`distinguish Shopify Payments from Shopify USA or Shopify Inc. in any material way—this brief
`simply cross references those arguments, rather than repeating them here. Specifically, the
`Statement of Issues to Be Decided (§ I), Background Facts (§ II.A), Legal Standard (§ III), and
`arguments under Rule 8 (§ IV.A) and Rule 12(b)(6) (§ IV.C), either borrow liberally from the
`corresponding sections of Shopify Inc.’s MTD or Shopify USA’s MTD, or cross reference the
`appropriate sections of those briefs.
`But the SAC also fails for reasons specific to Shopify Payments—which are the focus of
`this brief. Specifically, the SAC fails to plead facts that establish personal jurisdiction over Shopify
`Payments, and relies on facts Plaintiff knows to be incorrect, see infra § II.B. The new discussion
`of those Shopify Payments-specific issues is contained in the Facts Specific to Shopify Payments
`(§ II.B), and in arguments as to why this Court lacks jurisdiction over Shopify Payments (§ IV.B).
`For each and all of those reasons, the SAC should be dismissed.
`I.
`STATEMENT OF ISSUES TO BE DECIDED (CIVIL L.R. 7-4(a)(3))
`Shopify Payments seeks Rule 8 dismissal for failure to plead facts showing that Shopify
`Payments caused Plaintiff’s alleged harm, Rule 12(b)(2) dismissal for lack of personal jurisdiction,
`and Rule 12(b)(6) dismissal for failure to state a claim.
`II.
`SUMMARY OF RELEVANT FACTS
`A.
`Background Facts1
`The SAC alleges that in June 2019, Plaintiff purchased fitness apparel from IABMFG, a
`Shopify Inc. merchant, through IABMFG’s website. SAC ¶ 57. In the course of that purchase, the
`SAC alleges Plaintiff was presented with the checkout screen reproduced at SAC ¶ 28 (Fig. 1).
`SAC ¶ 58. In providing these reproductions of IABMFG’s current website, the SAC incorporates
`
`1 Because these facts are drawn from the portions of the SAC directed only at the fictitious
`“Shopify” amalgam, they do not vary across entities and thus are reproduced from Shopify Inc.’s
`MTD. Facts specific to Shopify Payments are included in the next section, “Facts Specific to
`Shopify Payments.”
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`SHOPIFY PAYMENTS’ MOTION TO
`DISMISS
`CASE NO. 4:21-CV-06269
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`Case 4:21-cv-06269-PJH Document 53 Filed 02/17/22 Page 9 of 25
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`those webpages by reference, and the Court is permitted to consider their full context. See Knievel
`v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).
`The image at SAC ¶ 28 is cropped so as to omit the portion of the screen below the
`“Continue to shipping” and “Return to cart” buttons, which presents shoppers with links to
`IABMFG’s Refund Policy, Privacy Policy, and Terms of Service (Fig. 2). See Heath Decl., Ex. A
`(red box added).2
`
`Figure 1
`
`Figure 2
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`2 Available at https://www.iambecoming.com/4572025/checkouts/5a9f0424b4812fc7195441a3ff
`49d5b1.
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`DISMISS
`CASE NO. 4:21-CV-06269
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`The same pages from which the SAC provides screenshots demonstrates that, in the course
`of checking out, consumers are provided with other links to IABMFG’s Privacy Policy as well.
`For instance, the SAC alleges that after completing the above checkout screen (Fig. 1), Plaintiff
`was “required to provide his private information in order to complete the checkout process,” SAC
`¶ 59, on a screen like the one below (Fig. 3), SAC ¶ 31. As above, the full version of that screen
`(Fig. 4) includes a link to IABMFG’s Privacy Policy. See Heath Decl., Ex. B (red box added). 3
`
`Figure 3
`
`Figure 4
`
`When selecting the method for shipping his purchases, there too IABMFG’s website
`presents a link to the Privacy Policy. (Fig. 5). See Heath Decl., Ex. C (red box added).4
`
`3 Available at https://www.iambecoming.com/4572025/checkouts/5a9f0424b4812fc7195441a3ff
`49d5b1?previous_step=shipping_method&step=payment_method.
`4 Available at https://www.iambecoming.com/4572025/checkouts/5a9f0424b4812fc7195441a3ff4
`9d5b1?previous_step=contact_information&step=shipping_method
`SHOPIFY PAYMENTS’ MOTION TO
`DISMISS
`CASE NO. 4:21-CV-06269
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`Figure 5
`In short, the website the SAC relies on links to IABMFG’s Privacy Policy for consumers at
`least three times (see Figs. 2, 4, 5) in the course of checkout, each situated in a distinct blue color,
`just under the buttons that Plaintiff was required to click on in order to advance with his purchase.
`Despite providing and relying on these screenshots and incorporating the webpages by reference,
`the SAC alleges “on information and belief” that “[a]t some point . . . after Plaintiff’s transaction
`with IABMFG—the company modified its website” and that “Plaintiff never saw” the links to the
`Privacy Policy that clearly appear on the uncropped pages imaged in the SAC. SAC ¶ 61.
`IABMFG’s Privacy Policy linked on those pages the SAC provides in cropped form
`discloses (among other things) that IABMFG’s online store is “hosted on Shopify Inc.,” an “e-
`commerce platform that allows [merchants] to sell [their] products and services” online.” Indeed,
`the Privacy Policy has an entire section dedicated to Shopify Inc. and its role, where it explains that
`a consumer’s data is “stored through Shopify [Inc.]’s data storage, databases, and the general
`Shopify application,” and that if a customer chooses certain payment methods, Shopify Inc. will
`“store[] [the consumer’s] credit card data” for “only as long as is necessary to complete [the]
`purchase transaction,” at which point the “purchase transaction information is deleted.” IABMFG’s
`Privacy Policy further directs readers to Shopify Inc.’s own Terms of Service and Privacy
`Statement in case they have additional questions about Shopify Inc.’s involvement, Heath Decl.,
`Ex. D (emphasis added):
`
`SECTION 4 - SHOPIFY
`Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that
`allows us to sell our products and services to you.
`Your data is stored through Shopify’s data storage, databases, and the general Shopify
`application. They store your data on a secure server behind a firewall.
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`DISMISS
`CASE NO. 4:21-CV-06269
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`Payment:
`If you choose a direct payment gateway to complete your purchase, then Shopify stores your
`credit card data. It is encrypted through the Payment Card Industry Data Security Standard (PCI-
`DSS). Your purchase transaction data is stored only as long as is necessary to complete
`your purchase transaction. After that is complete, your purchase transaction information is
`deleted.
`All direct payment gateways adhere to the standards set by PCI-DSS as managed by the PCI
`Security Standards Council, which is a joint effort of brands like Visa, MasterCard, American
`Express and Discover.
`PCI-DSS requirements help ensure the secure handling of credit card information by our store and
`its service providers.
`For more insight, you may also want to read Shopify’s Terms of Service
`(https://www.shopify.com/legal/terms) or Privacy Statement (https://www.shopify.com/
`legal/privacy).
`
`Shopify Inc.’s own Privacy Statement, in turn, contains more detailed disclosures about
`what data it processes and how. It included a plainly worded explanation of how Shopify Inc.
`handled consumer data, covering topics including: “[w]hy we process your information,” “[w]here
`we send your information,” “[y]our rights over your information,” and “[h]ow we use ‘cookies’
`and other tracking technologies.” Heath Decl., Ex. E. This last category includes a link to Shopify
`Inc.’s Cookie Policy, which provided more detail on every cookie that Shopify Inc. used, including
`name, function, and duration. Heath Decl., Ex. F.
`The SAC nevertheless claims that Plaintiff “was not aware” that when he “submitted the
`form containing his private information to complete the checkout process, his private information
`was sent to Shopify[] [Inc.]’s computer network, where it was stored, analyzed, and/or processed.”
`SAC ¶ 60. The SAC also asserts that Plaintiff “was not aware” that Shopify Inc. would “install[]
`… a tracking cookie … on his smartphone.” Id. The SAC alleges that “[h]ad [Plaintiff] known
`that Shopify [Inc.] would collect, store, analyze, and/or transfer his private information,” he “would
`not have purchased products from IABMFG.” SAC ¶ 64. In acknowledging the presence of
`disclosures of Shopify’s involvement, the SAC claims that, nevertheless, “Plaintiff never saw nor
`agreed” to those “privacy disclosures on the IABMFG website.” SAC ¶ 61.
`Nevertheless, on these bases, Plaintiff filed this lawsuit accusing Shopify Payments,
`Shopify Inc., and Shopify USA of committing crimes and torts for processing his purchase
`information and utilizing routine cookies in exactly the manner those disclosures said it would.
`
`- 6 -
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`SHOPIFY PAYMENTS’ MOTION TO
`DISMISS
`CASE NO. 4:21-CV-06269
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`Case 4:21-cv-06269-PJH Document 53 Filed 02/17/22 Page 13 of 25
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`Facts Specific to Shopify Payments
`B.
`Shopify Payments is a company distinct from both Shopify Inc. and Shopify USA, which
`provides Shopify Inc. merchants in the United States with a simple way to accept payments online.
`See Bressack Decl. ¶ 3-4. Specifically, Shopify Payments provides payment account boarding,
`payment underwriting, and payment data transmission services that help merchants integrate with
`a payment processor, so that the payment processor can accept and process credit card, debit card,
`and other types of payments for the merchant’s sales. Id. ¶ 4.
`To that end, Shopify Payments “contracted with Stripe … to provide payment processing
`services” to Shopify Inc. merchants. SAC ¶ 16; see also ECF No. 39-5. Through that contract—
`which the SAC incorporates by reference by quoting from it and describing it, see supra at 2-3—
`Shopify Payments engages Stripe to provide “payment processing services” to merchants who elect
`to use Shopify Payments “for financial transaction processing of credit cards, debit cards, and other
`Payment Devices.” See Bressack Decl. ¶ 11 (explaining that the contract is available at sec.gov/
`Archives/edgar/data/1594805/000119312515129273/d863202dex1011.htm). Additionally,
`the
`contract imposes “[l]imitations” on what Stripe may do with consumer data. Id. Specifically, it
`states that if Shopify Payments “provides to [Stripe] any User Data that is Personally Identifiable
`Information, then [Stripe] will: (a) be permitted to use such shared User Data solely for the purpose
`of performing its obligations under this Agreement, (b) not disclose any such shared User Data to
`any third party (other than third parties engaged, under appropriate terms of confidentiality, to assist
`with the provision of Stripe Services), and (c) utilize commercially reasonable security measures
`… to protect such shared User Data from unauthorized access, use, disclosure, alteration, or
`destruction.” Id. Thus while the SAC alleges that “through that contract, Shopify Payments (USA),
`Inc. shares with Stripe thousands, if not millions of California consumers’ private information and
`transaction information and has enabled Stripe, Inc. to develop user profiles on those California
`consumers,” SAC ¶ 17, that allegation is contradicted by the contract itself, which makes no
`mention of—and certainly does not require—any user profiles to be created by Stripe. See Bressack
`Decl. ¶ 11.
`As alluded to above, Shopify Payments provides services only to some eligible merchants
`SHOPIFY PAYMENTS’ MOTION TO
`DISMISS
`CASE NO. 4:21-CV-06269
`
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`Case 4:21-cv-06269-PJH Document 53 Filed 02/17/22 Page 14 of 25
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`in the United States. Id. ¶ 5. Not all United States merchants are eligible to use Shopify Payments’
`services; and of those merchants that are eligible, not all necessarily utilize those services.5
`Id.
`Eligible merchants who do utilize Shopify Payments’ services agree to be bound by Shopify
`Payments’ Terms of Service. Those Terms of Service, as their name suggests, are a contract
`between Shopify Payments and merchants who choose to avail themselves of Shopify Payments’
`services; they are not an agreement between Shopify Payments and any other entity (including
`merchants’ customers, like Plaintiff).
`The contents of the Terms of Service change from time to time. See Bressack Decl. ¶ 9. At
`the time Plaintiff allegedly made his purchase from IABMFG in June 2019, see SAC ¶ 57, the
`operative version of the Terms of Service was Version 1.10.6 Bressack Decl. ¶ 9. The SAC,
`however, quotes from a different version of the Terms of Service—one that was not in effect at the
`time Plaintiff made his purchase. See Bressack Decl. ¶ 9; SAC ¶ 15. While the SAC asserts that
`Terms of Service provided that “‘[Stripe] and MaxMind, a fraud detection service, each
`independently serve as “data controllers” with regards to any personal data that they may processes
`under this Agreement and that we are not responsible for how they process such data,’” SAC ¶ 15,
`that language does not appear anywhere in the operative Terms of Service (Version 1.10). Bressack
`Decl. ¶ 9. In fact, Version 1.10 of the Terms of Service does not make any mention of “MaxMind”
`at all. Id. Rather, the language quoted in the SAC appeared in the Shopify Payments Terms of
`Service months after Plaintiff made his purchase, specifically from on or around February 2020
`until on or around January 2022. Id. Plaintiff is aware his SAC references an inapplicable version
`of the Terms of Service. When Defendants offered Plaintiff an opportunity to amend the SAC
`unopposed prior to submission of the instant Motions, Plaintiff declined, once again receiving a
`
`5 The SAC does not specifically allege whether IABMFG, the merchant from whom Plaintiff made
`his purchase, was eligible for Shopify Payments’ services or whether it, in fact, utilized those
`services. This failure to plead facts connecting Shopify Payments to the acts with which Plaintiff
`takes issue is yet another indicator of the slapdash manner in which Shopify Payments has been
`added to this lawsuit. Despite claiming that he had thoroughly investigated his claims before filing
`in August 2021, it was only in late December 2021, after reading Shopify Inc.’s and Shopify USA’s
`filed motions to dismiss (and perhaps worrying that he would be unable to sustain a claim against
`those entities), that Plaintiff sought to add Shopify Payments as an additional defendant.
`6 Available at https://web.archive.org/web/20200212224322/https:/www.shopify.com/legal/terms-
`payments-us.
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`SHOPIFY PAYMENTS’ MOTION TO
`DISMISS
`CASE NO. 4:21-CV-06269
`
`

`

`Case 4:21-cv-06269-PJH Document 53 Filed 02/17/22 Page 15 of 25
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`preview of Defendants briefing instead of addressing his pleading error.7
`III.
`LEGAL STANDARD
`A motion to dismiss under Rule 8 is decided solely on the face of the complaint. A
`complaint survives such a motion only if it provides each “defendant[] fair notice of the claims
`against [it].” Bravo v. Cnty. of San Diego, 2014 WL 555195, at *2 (N.D. Cal. 2014). “[L]umping
`together multiple defendants in one broad allegation fails to satisfy [this] notice requirement.” Id.
`A motion to dismiss under Rule 12(b)(2) is not limited to the pleadings and “may consider
`extrinsic evidence … including affidavits submitted by the parties.” Stewart v. Screen Gems-EMI
`Music, Inc., 81 F. Supp. 3d 938, 951 (N.D. Cal. 2015). The plaintiff bears the burden of establishing
`personal jurisdiction. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006).
`A motion to dismiss under Rule 12(b)(6) is resolved solely on the face of the complaint. To
`survive a motion under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted
`as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
`(2009). “[L]abels and conclusions, and a formulaic recitation of the elements” of claims will not
`suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
`IV.
`LEGAL ARGUMENT
`A.
`The SAC Fa