Case 5:20-cv-09157-SVK Document 52 Filed 10/15/21 Page 1 of 24
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`MOBILE EMERGENCY HOUSING
`CORP., et al.,
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`Plaintiffs,
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`v.
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`HP, INC.,
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`Defendant.
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`Case No. 20-cv-09157-SVK
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`
`ORDER GRANTING IN PART AND
`DENYING IN PART DEFENDANT'S
`MOTION TO DISMISS PLAINTIFFS'
`THIRD AMENDED COMPLAINT
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`Re: Dkt. Nos. 44, 45, 46, 47, 49, 50
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`
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`Defendant HP, Inc. d/b/a HP Computing and Printing Inc. (“Defendant” or “HP”) moves to
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`dismiss Plaintiffs Mobile Emergency Housing Corp. (“Mobile Emergency”), Track Rat
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`Enterprises, Inc. d/b/a Performance Automotive & Tire Center (“Performance Automotive”), and
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`David Justin Lynch’s (“Lynch”) (collectively, “Plaintiffs”) Third Amended Complaint (“TAC”)
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`(Dkt. 42) pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter
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`jurisdiction, Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and/or
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`move to strike Plaintiffs’ requests for injunctive relief pursuant to Rule 12(f). Dkt. 44. The
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`Parties have consented to the jurisdiction of a magistrate judge. Dkts. 15, 21, 33.
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`Pursuant to Civil Local Rule 7-1(b), the Court deems the motion to dismiss suitable for
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`determination without oral argument. Having carefully considered the Parties’ submissions, the
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`case file, and the relevant law, and for the reasons discussed below, the Court GRANTS IN
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`PART AND DENIES IN PART Defendant’s motion to dismiss the TAC.
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`I.
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`BACKGROUND
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`This discussion of the background facts is based on the allegations of Plaintiffs’ TAC.
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`Plaintiffs allege that HP transmits firmware updates without authorization to HP printers through
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`the Internet. Dkt. 42 ¶¶ 1, 28. Plaintiffs further allege that these firmware updates act as malware,
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`Northern District of California
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`United States District Court
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`Case 5:20-cv-09157-SVK Document 52 Filed 10/15/21 Page 2 of 24
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`“adding, deleting or altering code, diminishing the capabilities of HP printers, and rendering the
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`competitors’ supply cartridges incompatible with HP printers.” Id. ¶¶ 1, 24, 26. Further, while
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`users are told that the HP printers have a “supply problem,” HP intentionally caused the issue by
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`sending this malware to render third-party supplies incompatible with HP products. Id. ¶¶ 5, 24,
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`26, 29, 30. Plaintiffs allege that as a result of this malware, HP printer owners are either forced to
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`buy HP cartridges or they cannot use their printers until third parties can develop workarounds in
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`their products. Id. ¶ 3. Plaintiffs also allege that “HP uses this firmware update process to conceal
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`that it is actually collecting data on whether consumers are using HP or its competitors’
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`cartridges” without their consent. Id. ¶¶ 1, 27.
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`Plaintiff Mobile Emergency, through its authorized representative, purchased an HP Color
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`LaserJet Pro M254 for $238.96 on August 21, 2019 from a Staples store in New York. Id. ¶ 35.
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`The printer came with an initial set of model 202 HP-brand toner supply cartridges. Id. ¶ 37.
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`When those supply cartridges were exhausted, Mobile Emergency purchased a set of model 202
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`Greensky toner supply cartridges that were advertised to be compatible with this HP printer from
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`Amazon.com for $52.49. Id. ¶ 39. Plaintiffs allege that on or around November 18, 2020, HP sent
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`or activated a transmission to HP printers, which “altered the code and data” of the printer,
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`rendering the printer incompatible with third-party toner supply cartridges, including the Greensky
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`cartridges purchased by Mobile Emergency. Id. ¶ 40. HP did not notify Mobile Emergency of the
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`transmission, and Mobile Emergency only discovered this when the authorized representative
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`attempted to print a document, received an error message stating “[s]upply problem,” and the
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`printer ceased printing. Id. ¶¶ 41, 42. On December 1, 2020, Mobile Emergency purchased a
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`black HP toner cartridge for $71.68 from Staples to replace the Greensky cartridges. Id. ¶ 44.
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`Plaintiff Performance Automotive, through its authorized representative, used rewards
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`points to purchase an HP Color LaserJet Pro MFP M281fdw Laser Multifunction Printer from HP
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`in November 2018. Id. ¶¶ 46-47. The printer came with an initial set of model 202 HP-brand
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`toner supply cartridges. Id. ¶ 49. When those supply cartridges were exhausted, Performance
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`Automotive purchased model 202 GPC Image, Linkyo, and Greensky toner cartridges for
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`approximately $60 per set that were advertised to be compatible with this HP printer from
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`Case 5:20-cv-09157-SVK Document 52 Filed 10/15/21 Page 3 of 24
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`Amazon.com. Id. ¶ 51. Plaintiffs allege that on or around November 18, 2020, HP sent or
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`activated a transmission to HP printers, which “altered the code and data” of the printer, rendering
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`the printer incompatible with third-party toner supply cartridges, including the GPC Image,
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`Linkyo, and Greensky cartridges purchased by Performance Automotive. Id. ¶ 52. HP did not
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`notify Performance Automotive of the transmission, and Performance Automotive only discovered
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`the effects of the transmission when it attempted to print a document and received an error
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`message stating “[s]upply problem.” Id. ¶ 53. Performance Automotive’s printer ceased printing
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`and when its authorized representative checked the printer, he saw that the BIOS version had been
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`changed. Id. ¶ 54. The authorized representative researched the issue and discovered that HP Had
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`issued a “Bios Update,” which caused the printer to cease working. Id. ¶ 55. As a result of the
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`update, Performance Automotive’s printer and supply cartridges were disabled, and it purchased a
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`printer from a different printer manufacturer. Id. ¶ 56.
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`Plaintiff Lynch purchased an HP Color LaserJet Pro M254dw Wireless Printer for $239.25
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`from Best Buy on March 3, 2020. Id. ¶ 58. The printer came with an initial set of model 202 HP-
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`brand toner supply cartridges. Id. ¶ 59. When those supply cartridges were exhausted, Lynch
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`purchased a set of high-capacity model 202 toner cartridges for $215.46 from Express-Inks that
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`were advertised to be compatible with this HP printer. Id. ¶ 60. In January 2021, HP sent or
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`activated a transmission which altered the code and data of the printer, rendering the printer
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`incompatible with third-party toner supply cartridges, including the Express-Inks cartridges
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`purchased by Lynch. Id. ¶ 62. HP did not notify Lynch of the transmission, and Lynch only
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`discovered the effects of the transmission when he attempted to print a document, his printer
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`ceased printing, and he received an error message stating “[s]upply problem.” Id. ¶¶ 63-65. The
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`printer also displayed an error message stating that “[t]he indicated supplies are not
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`communicating correctly with the printer. Try reinstalling the supplies. If the problem persists,
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`replace the supplies to continue printing.” Id. ¶ 66. As a result of the transmission, Lynch
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`purchased new HP cartridges from Amazon.com to get the printer operating again. Id. ¶¶ 68-69.
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`Plaintiffs bring this action to seek damages and injunctive and other equitable relief as a
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`class action on behalf of themselves and the following classes:
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`Case 5:20-cv-09157-SVK Document 52 Filed 10/15/21 Page 4 of 24
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`Device Owner Class: All persons and entities in the United States who
`own a Class Printer.1
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`Damages Subclass: All persons and entities in the United States who
`own a Class Printer that displayed a diagnostic error, such as “Supply
`Problem” or other similar error code, as a result of HP’s transmission
`of a firmware update.
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`State Consumer Subclass: All persons and entities residing in
`California and States with a similar consumer protection statute to
`Cal. Civ. Code 1770(a)(15), who own a Class Printer that displayed a
`diagnostic error, such as “Supply Problem” or other similar error
`code, as a result of HP’s transmission of a firmware update.
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`Id. ¶ 74.
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`II.
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`REQUEST FOR JUDICIAL NOTICE AND INCORPORATION BY REFERENCE
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`A.
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`Legal Standard
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`There are two doctrines that allow district courts to consider material outside the pleadings
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`without converting a motion to dismiss into a motion for summary judgment: judicial notice under
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`Federal Rule of Evidence 201 and incorporation by reference. Khoja v. Orexigen Therapeutics,
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`Inc., 899 F.3d 988, 998 (9th Cir. 2018), cert. denied sub nom. Hagan v. Khoja, — U.S. —, 139 S.
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`Ct. 2615, 204 L. Ed. 2d 264 (2019). “The court may judicially notice a fact that is not subject to
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`reasonable dispute.” Fed. R. Evid. 201(b). A fact is “not subject to reasonable dispute” if it “is
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`generally known” or “can be accurately and readily determined from sources whose accuracy
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`cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1)-(2). However, “[j]ust because the
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`document itself is susceptible to judicial notice does not mean that every assertion of fact within
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`that document is judicially noticeable for its truth.” Khoja, 899 F.3d at 999.
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`Incorporation by reference is a judicially created doctrine that allows a court to consider
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`certain documents as though they are part of the complaint itself. Khoja, 899 F.3d at 1002. “The
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`doctrine prevents plaintiffs from selecting only portions of documents that support their claims,
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`while omitting portions of those very documents that weaken—or doom—their claims.” Id. A
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`1 Plaintiffs allege that “[s]ubject to information learned in discovery, the Class Printers comprise
`HP Color LaserJet printers and all-in-one devices, in the following non-exhaustive list of products
`and product series: HP Color LaserJet Pro M254, HP Color LaserJet Pro MFP M280, HP Color
`LaserJet Pro MFP M281, and all other models affected by HP malware transmissions in the way
`described herein (‘Class Printers’).” Dkt. 42 ¶ 33.
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`Case 5:20-cv-09157-SVK Document 52 Filed 10/15/21 Page 5 of 24
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`defendant can seek to incorporate a document into the complaint “if the plaintiff refers extensively
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`to the document or the document forms the basis of the plaintiff’s claim.” U.S. v. Ritchie, 342
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`F.3d 903, 908 (9th Cir. 2003) (citations omitted). While the “mere mention” of the existence of a
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`document is insufficient to incorporate a document, it is proper to incorporate a document if the
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`claim “necessarily depended” on them. Khoja, 899 F.3d at 1002.
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`After a defendant offers such a document, the district court can treat the document as part
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`of the complaint, and “thus may assume that its contents are true for purposes of a motion to
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`dismiss under Rule 12(b)(6).” Ritchie, 342 F.3d at 908. However, “[w]hile this is generally true,
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`it is improper to assume the truth of an incorporated document if such assumptions only serve to
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`dispute facts stated in a well-pleaded complaint.” Khoja, 899 F.3d at 1003. Indeed, using
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`extrinsic documents to “resolve competing theories against the complaint risks premature
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`dismissals of plausible claims that may turn out to be valid after discovery” and it is “improper to
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`do so only to resolve factual disputes against the plaintiff’s well-pled allegations in the
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`complaint.” Id. at 998, 1014.
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`B.
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`Analysis
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`Defendant asks the Court to take judicial notice of or incorporate by reference the
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`following documents:
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`(1) The “HP Printers – Dynamic Security Enabled Printers”
`webpage (“Dynamic Security Page”), as it appeared on
`November 11, 2020 (Dkt. 45-3 Exhibit A);
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`(2) The “Specs” tab of the HP store page for the HP Color
`LaserJet Pro MFP M281fdw printer model, as it appeared on
`April 22, 2018 (Dkt. 45-4 Exhibit B);
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`(3) The “Specs” tab of the HP store page for the HP Color
`LaserJet Pro M254dw printer model, as it appeared on March
`18, 2018 (Dkt. 45-5 Exhibit C);
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`(4) The “HP Color LaserJet Pro – 10.xx and Supplies Messages”
`webpage (“Troubleshooting Page”) (Dkt. 45-6 Exhibit D);
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`(5) The online message board (Dkt. 45-7 Exhibit E); and
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`(6) The “What Data We Collect” section of the “HP Privacy
`Statement” webpage (“Privacy Statement”), as it appeared on
`October 30, 2018 (Dkt. 45-8 Exhibit F).
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`Case 5:20-cv-09157-SVK Document 52 Filed 10/15/21 Page 6 of 24
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`Defendant asks the Court to take judicial notice of the Dynamic Security Page (Dkt. 45-3),
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`the store pages for the HP Color LaserJet Pro MFP M281fdw (Dkt. 45-4) and the HP Color
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`LaserJet Pro M254dw (Dkt. 45-5), and the Privacy Statement (Dkt. 45-8), because courts in this
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`circuit “have routinely taken judicial notice of content from the Internet Archive’s Wayback
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`Machine.” Dkt. 45 at 5 (citing Parziale v. HP, Inc., No. 5:19-cv-05363-EJD, 2020 WL 5798274,
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`at *3 (N.D. Cal. Sept. 29, 2020) (“Parziale II”)). Defendant also argues that at a minimum, the
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`Court should take judicial notice that HP consumers are on notice that cartridges that do not have a
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`HP chip or are modified may not function and even if they function for a period of time, they may
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`cease to function, as this notice was available on the Dynamic Security Page before the firmware
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`updates at issue were allegedly transmitted. Id. Further, Defendant contends that regarding the
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`two store pages, the Court should take judicial notice of the fact that HP’s notice to consumers that
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`these printers are “[d]ynamic security enabled printer[s]” and that “[c]artridges using a non-HP
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`chip may not work, and those that work today may not work in the future” was publicly available
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`on the respective store pages before Plaintiffs purchased their printers. Id. Finally, Defendant
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`argues that at a minimum, the Court should take judicial notice of the fact that at all relevant times,
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`the Privacy Statement advised consumers that HP “automatically” “collect[s] product usage data
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`such as . . . ink or toner brand.” Id.
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`Plaintiffs oppose Defendant’s request for judicial notice of each of these documents,
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`arguing that the webpages are irrelevant and not relied upon in the TAC. Dkt. 46 at 2. Further,
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`Plaintiffs argue that they do not allege “that they viewed these webpages or anything stated on
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`HP’s website, and thus did not have reason to view HP’s webpages.” Id. at 3. Plaintiffs argue that
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`“[n]o Plaintiff purchased their printer on HP’s website.” Id. at 4. Plaintiffs distinguish this case
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`from Parziale II, arguing that in that case, the complaint heavily referred to the store page and
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`plaintiff alleged that he relied on the information on the store page in deciding to make his
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`purchase. Id. at 3. Plaintiffs also argue that “[m]erely because something is ‘available’ online is
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`not a basis for charging a plaintiff with notification of it.” Id. at 3-4.
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`The Court finds that these webpages are publicly available pages whose accuracy cannot
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`reasonably be questioned. The Court takes judicial notice of these webpages for the fact that
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`Case 5:20-cv-09157-SVK Document 52 Filed 10/15/21 Page 7 of 24
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`Defendant made these statements, but not for the truth of those statements. The request for
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`judicial notice of Exhibits A, B, C, and F are GRANTED.
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`Defendant asks the Court to take judicial notice of the Troubleshooting Page (Dkt. 45-6)
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`because it is posted on a publicly available website. Dkt. 45 at 6. Additionally, Defendant
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`contends that the Troubleshooting Page is incorporated by reference in the TAC, because Plaintiffs
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`allege that after the error message appeared, Mobile Emergency’s authorized representative
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`“searched HP’s website [to] check for a solution . . . but could find only a recommendation to
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`replace the cartridge with an HP-branded cartridge.” Id. (citing Dkt. 42 ¶ 43). Defendant
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`contends that this allegation “is a clear reference to the Troubleshooting Page.” Id. Plaintiffs
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`argue that paragraph 43 of the TAC stating “that [the authorized representative] searched HP’s
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`website to check for a solution is not a clear reference to the Troubleshooting Page” and should
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`not be considered. Dkt. 46 at 5. The Court finds that the Troubleshooting Page is publicly
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`available, and its accuracy cannot reasonably be questioned. However, the Court finds that it is
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`unclear whether Plaintiffs are referring to this page in its TAC and the claim does not “necessarily
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`depen[d]” on the existence of this document. See Khoja, 899 F.3d at 1002. Accordingly, request
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`for judicial notice of Exhibit D is GRANTED and the request to incorporate by reference is
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`DENIED.
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`Finally, Defendant asks the Court to take judicial notice of the online message board (Dkt.
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`45-7), arguing that it is referenced repeatedly in the TAC and incorporated by reference. Dkt. 45
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`at 7 (citing Dkt. 42 ¶ 71, nn.13-16). The Court does not rely on this exhibit in evaluating
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`Defendant’s motion to dismiss. Accordingly, Defendant’s request for judicial notice and request
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`to incorporate by reference are DENIED AS MOOT.
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`III. MOTION TO DISMISS AND/OR STRIKE
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`A.
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`Legal Standard
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`1.
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`Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(1)
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`A defendant may move to dismiss an action for lack of subject matter jurisdiction under
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`Federal Rule of Civil Procedure 12(b)(1). Article III standing is a threshold requirement for
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`federal court jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S. Ct. 2130,
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`119 L. Ed. 2d 351 (1992). The party seeking standing must show that “(1) he or she has suffered
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`an injury in fact that is concrete and particularized, and actual or imminent; (2) the injury is fairly
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`traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court
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`decision.” Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1225 (9th Cir.
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`2008) (citing Lujan, 504 U.S. at 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351).
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`A party moving to dismiss under Rule 12(b)(1) may make a facial challenge by asserting
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`that “the allegations contained in [the] complaint are insufficient on their face to invoke federal
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`jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The Court
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`“must accept as true all material allegations of the complaint, and must construe the complaint in
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`favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 45 L. Ed. 2d
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`343 (1975). “At the pleading stage, general factual allegations of injury resulting from the
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`defendant’s conduct may suffice, for on a motion to dismiss, we presume that general allegations
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`embrace those specific facts that are necessary to support the claim.” Lujan, 504 U.S. at 561, 112
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`S. Ct. 2130, 119 L. Ed. 2d 351 (internal quotation marks and citation omitted).
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`2.
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`Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)
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`Under Rule 12(b)(6), a district court must dismiss a complaint if it fails to state a claim
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`upon which relief can be granted. In ruling on a motion to dismiss, the court may consider only
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`“the complaint, materials incorporated into the complaint by reference, and matters of which the
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`court may take judicial notice.” Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049,
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`1061 (9th Cir. 2008) (citation omitted). In deciding whether the plaintiff has stated a claim, the
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`court must assume the plaintiff’s allegations are true and draw all reasonable inferences in the
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`plaintiff’s favor. Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 1987). However, the court is
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`not required to accept as true “allegations that are merely conclusory, unwarranted deductions of
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`fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.
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`2008) (citation omitted).
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`To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must allege “enough facts
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`to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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`570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). This “facial plausibility” standard requires the
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`plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted
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`unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).
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`Courts should freely give leave to amend unless the district court determines that it is clear
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`that the complaint’s deficiencies cannot be cured by amendment. Lucas v. Dep’t of Corr., 66 F.3d
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`245, 248 (9th Cir. 1995). When amendment would be futile, the court may dismiss without leave
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`to amend. Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir. 1996).
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`B.
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`Analysis
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`Plaintiffs allege that due to Defendant’s unlawful conduct, Plaintiffs’ printers and supply
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`cartridges were “rendered incompatible and inoperable.” Dkt. 42 ¶ 7. Further, Plaintiffs allege
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`that they “would not have purchased an HP printer had they known HP was engaged in and would
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`engage in [this] conduct.” Id. Finally, Plaintiffs allege that as a result of HP’s misconduct, they
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`“sustained damages, including but not limited to the loss of the value of the supply cartridges they
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`purchased that are no longer compatible with their printers, loss of time and effort to diagnose the
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`damage to their printers and to determine what remedial measures to take, the need to purchase
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`expensive HP supply cartridges, uncertainty in the functioning of their printers and supply
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`cartridges, and future remedial costs.” Id. From these allegations, Plaintiffs assert eight claims:
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`(1) violation of the Computer Fraud and Abuse Act; (2) violation of the California
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`Comprehensive Computer Data Access and Fraud Act; (3) violation of the California False
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`Advertising Law; (4) violation of the California Unfair Competition Law under the fraudulent
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`prong; (5) violation of the California Unfair Competition Law under the unfair prong; (6) violation
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`of the California Unfair Competition Law under the unlawful prong; (7) trespass to chattels; and
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`(8) violation of the California Consumers Legal Remedies Act.
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`Defendant asserts that Plaintiffs’ data-collection claims fail because Plaintiffs do not allege
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`that they suffered any injury as a result of Defendant’s alleged data collection. Dkt. 44 at 12, 18-
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`19. Further, Defendant asserts an overarching argument that the TAC should be dismissed,
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`because Defendant’s privacy policy advises consumers that Defendant “automatically” collects
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`“product usage data such as . . . ink or toner brand.” Id. Defendant also contends that it publicly
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`discloses on its webpages that its printers are “dynamic security enabled” and that “[c]artridges
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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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`

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`Case 5:20-cv-09157-SVK Document 52 Filed 10/15/21 Page 10 of 24
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`using a non-HP chip may not work, and those that work today may not work in the future.” Id. at
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`12-13. Defendant also asserts arguments as to why certain claims individually should be
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`dismissed. The Court turns to the arguments below.
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`1.
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`Article III Standing
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`“[T]he Court notes at the outset that the threshold question of whether Plaintiffs have
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`standing and the Court has jurisdiction is distinct from the merits of Plaintiffs’ claim.” Fraley v.
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`Facebook, Inc., 830 F. Supp. 2d 785, 796 (N.D. Cal. 2011) (quoting Maya v. Centex Corp., 658
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`F.3d 1060, 1068 (9th Cir. 2011)) (internal quotation marks omitted). “Rather, the jurisdictional
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`question of standing precedes, and does not require, analysis of the merits.” Maya, 658 F.3d at
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`1068 (quoting Equity Lifestyle Props., Inc. v. Cnty. of San Luis Obispo, 548 F.3d 1184, 1189 n.10
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`(9th Cir.2008)) (internal quotation marks omitted). “At the same time, it is well established that
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`the actual or threatened injury required by Article III may exist solely by virtue of statutes creating
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`legal rights, the invasion of which creates standing.” Fraley, 830 F. Supp. 2d at 796 (citing Warth
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`v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L. Ed. 2d 343 (1975)) (internal quotation marks
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`omitted). Accordingly, “a plaintiff may be able to establish constitutional injury in fact by
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`pleading violation of a right conferred by statute, so long as [he] can allege that the injury [he]
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`suffered was specific to [him].” Id.
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`Defendant contends that Plaintiffs’ data-collection claims fail due to lack of standing to the
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`extent that they are predicated on their data collection theory. Dkt. 44 at 18. Specifically,
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`Defendant argues that Plaintiffs’ theory of injury that HP uses the data collected to punish its
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`customers is theoretical and is not an injury in fact. Id. at 18-19. Without assessing the merits of
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`Plaintiffs’ claims, the Court finds that Plaintiffs allege that Defendant violated their individual
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`rights and that they suffered injuries as a result of Defendant’s conduct. See Dkt. 42 ¶¶ 86-157.
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`Additionally, the Court finds that Plaintiffs’ alleged injuries are “concrete and particularized.”
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`The TAC contains specific allegations describing what losses Plaintiffs suffered, including being
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`forced to purchase HP-authorized cartridges, purchasing other printers, paying to dispose of their
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`unused supplies, decreased market value of the printers, as well as money, time, and labor spent to
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`research and fix the issues. See id. ¶¶ 97-99, 108-111, 121, 133, 141-42, 148, 155. “[A]s the
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`10
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`Northern District of California
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`United States District Court
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`

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`Case 5:20-cv-09157-SVK Document 52 Filed 10/15/21 Page 11 of 24
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`Ninth Circuit recently reminded, ‘standing analysis, which prevents a claim from being
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`adjudicated for lack of jurisdiction, [may not] be used to disguise merits analysis, which
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`determines whether a claim is one for which relief can be granted if factually true.” Fraley, 830
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`F. Supp. 2d at 800 (quoting Catholic League for Religious and Civil Rights v. City & Cnty. of S.F.,
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`624 F.3d 1043, 1049 (9th Cir. 2010) (en banc)). “At this stage, the Court must presume ‘that
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`general allegations embrace those specific facts that are necessary to support the claim.’” Id.
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`(citing Lujan, 504 U.S. at 561); see also Ruiz v. Gap, Inc., 540 F. Supp. 2d 1121, 1126 (N.D. Cal.
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`2008) (denying motion to dismiss for lack of standing but noting that “[s]hould it become apparent
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`that [plaintiff’s] alleged injury is in fact too speculative or hypothetical, the Court will conclude,
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`as it must, that [plaintiff] lacks standing”). The Court finds that Plaintiffs have set forth sufficient
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`“general factual allegations of injury resulting from the defendant’s conduct” to survive a 12(b)(1)
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`motion to dismiss. See Lujan, 504 U.S. at 561. Accordingly, Defendant’s motion to dismiss
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`pursuant to Rule 12(b)(1) is DENIED.
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`2.
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`HP’s Public Disclosures
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`Defendant first argues that several of Plaintiffs’ claims fail to state a claim because
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`Defendant’s privacy policy advises consumers that Defendant “automatically” collects “product
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`usage data such as . . . ink or toner brand.” Dkt. 44 at 12. Defendant also contends that it publicly
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`discloses on its webpages that its printers are “dynamic security enabled” and that “[c]artridges
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`using a non-HP chip may not work, and those that work today may not work in the future.” Id. at
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`12-13.
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`In the TAC, Plaintiffs allege that HP did not advise them of the unsolicited transmission
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`that rendered their printers incompatible with third-party toner supply cartridges. Dkt. 42 ¶¶ 40-
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`41, 52-53, 62-63. Further, Plaintiffs allege that “HP uses the firmware update process to conceal
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`that it is actually collecting data on whether consumers are using HP or its competitors’
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`cartridges.” Id. ¶ 1. Additionally, in its opposition, Plaintiffs contend that no plaintiff visited any
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`HP store page, any HP website at any relevant time, and did not rely on “any statements of HP that
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`arguably could have put any of them on notice that automatic firmware updates might render a []
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`[p]rinter inoperable.” Dkt. 47 at 14. In contrast, in Parziale II, the Court stated that plaintiffs
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`11
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`

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`Case 5:20-cv-09157-SVK Document 52 Filed 10/15/21 Page 12 of 24
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`were expressly notified that cartridges using a non-HP chip may not work, concluding that
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`“Plaintiff was on notice of the potential firmware update and its effects.” Parziale II, 2020 WL
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`5798274, at *7. At the motion to dismiss stage, the Court is not prepared to find that Defendant’s
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`statements, which Plaintiffs purport that they did not view or rely on, establish an absolute bar to
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`Plaintiffs’ claims. Usher, 828 F.2d at 561 (“On a motion to dismiss for failure to state a claim, the
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`court must presume all factual allegations of the complaint to be true and draw all reasonable
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`inferences in favor of the nonmoving party.”) (citation omitted).
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`3.
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`Computer Fraud and Abuse Act (“CFAA”) Claim
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`The CFAA provides that “[a]ny person who suffers damages or loss by reason of a
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`violation of this section may maintain a civil action against the violator to obtain compensatory
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`damages and injunctive relief or other equitable relief.” 18 U.S.C. § 1030(g). “The CFAA
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`prohibits a number of different computer crimes, the majority of which involve accessing
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`computers without authorization or in excess of authorization, and then taking specified forbidden
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`actions, ranging from obtaining information to damaging a computer or computer data.” LVRC
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`Holdings LLC v. Brekka, 581 F.3d 1127, 1135 (9th Cir. 2009) (citing 18 U.S.C. §§ 1030(a)(1)-(7)
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`(2004)). In the TAC, Plaintiffs allege that HP violated Sections 1030(a)(5)(A) and 1030(a)(2)(C).
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`Section 1030(a)(5)(A) creates liability for whomever “knowingly causes the transmission of a
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`program, information, code, or command, and as a result of such conduct, intentionally causes
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`damage without authorization, to a protected computer.” Section 1030(a)(2)(C) creates liability
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`for whomever “intentionally access a computer without authorization or exceeds authorized
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`access, and thereby obtains . . . information from any protected computer.”
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`a.
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`18 U.S.C. § 1030(a)(5)(A)
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`Defendant argues that Plaintiffs’ Section 1030(a)(5)(A) claim fails because its firmware
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`updates do not meet the statutory definition of “damage.” Dkt. 44 at 29. Specifically, Defendant
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`conte