U.S. District Judge Jon Tigar, Northern District of California (S. Todd Rogers / The Recorder)
SAN FRANCISCO — A federal judge sent plaintiffs lawyers back to the drawing board on Wednesday to rework their claims that a host of app makers illegally siphoned information from consumers’ address books on iPhones and other Apple devices.
In a 57-page order, U.S. District Judge Jon Tigar of the Northern District of California picked apart the lion’s share of claims filed in a massive class action against Apple and the manufacturers of popular apps, including Twitter, Facebook, Instagram and Angry Birds. In one consolation prize for plaintiffs, Tigar allowed a common-law claim alleging app makers violated users’ reasonable expectation of privacy to move forward without amendments.
But the rest of the plaintiffs’ claims left him wanting, more often than not, for details. For example, he wrote that plaintiffs must identify the particular advertisements viewed by consumers in order to sufficiently allege that Apple misled them about the security of their devices.
“What the [consolidated amended class action complaint] fails to do is connect any specific plaintiff to any specific representation,” Tigar wrote. “The court now concludes, even reading the complaint in the light most favorable to plaintiffs, that plaintiffs have failed to allege that any one of them saw any particular representation.”
Tigar is shepherding five related cases that claim Apple and 14 app makers violated users’ privacy by stealing and distributing the contact information stored on their devices. Although Apple’s policies appeared to prohibit such disclosures, the New York Times reported last year that scores of popular applications were tapping into users’ address books, spawning the suits.
Tigar named Kerr & Wagstaffe and Phillips, Erlewine & Given as colead counsel for the plaintiffs last year. A spate of Big Law attorneys have entered the fray for the defendants, including Cooley for Facebook Inc., Perkins Coie for Twitter Inc., Durie Tangri for Yelp Inc., ZwillGen Law for Electronic Arts Inc. and Gibson Dunn for Apple.
Last year, Tigar found that a plaintiff in one case, Pirozzi v. Apple, had done enough to show which statements from Apple were relied on as consideration in whether to purchase the devices. But defendants prodded Tigar to reconsider, and he came around to their side on Wednesday, finding that the plaintiff had merely alleged that she visited Apple’s website, not that she read particular statements she claimed were misleading.
But Tigar was more receptive to plaintiffs’ common-law claim that the app makers defied the expectations of privacy by plundering plaintiffs’ address books. The defendants contended that the claim should be tossed because the intrusion was not “highly offensive.” But that judgment should be left to a jury, Tigar wrote.
“While the court recognizes that attitudes toward privacy are evolving in the age of the internet, smartphones and social networks, the court does not believe that the surreptitious theft of personal contact information … has come to be qualified as ‘routine commercial behavior,’” he wrote.
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