<i>Online Extra</i> Koh Drops Ax on Privacy Claims Against Apple

'Critically, none of the plaintiffs presents evidence that he or she even saw, let alone read and relied upon, the alleged misrepresentations contained in the Apple Privacy Policies,' Koh wrote. 'The Court questions how one can act in reliance on a statement one does not see, read, or hear.'

As most of the data privacy suits levied against Valley companies have been thwarted with a motion to dismiss or settled soon after, In re iPhone Application, 11-2250 was among the first to reach the juncture of class certification, lawyers said. But Koh hobbled the case at that hurdle, denying the plaintiffs' motion for class certification as moot in light of her other ruling in Apple's favor.

The case raised eyebrows among groups monitoring privacy litigation, including the U.S. Chamber Institute for Legal Reform, which flagged it as an 'extreme example' of the suits targeting Valley companies. Former Gibson Dunn partner Ashlie Beringer argued the motion for class certification before joining Facebook as a vice president and deputy general counsel.

Scott Kamber of KamberLaw suggested that Koh's decision not to address the merits of the underlying claims might create an opening for plaintiffs.

'While we are disappointed in the decision and working with our clients to evaluate their options, it is worth noting that Judge Koh denied Apple's motion in so far as Apple claimed there was no injury,' he wrote in an e-mail.

The case seemed to turn for Koh on the plaintiffs' depositions. She noted in her order that plaintiffs either conceded that they had not reviewed Apple's policies before purchasing their devices or could not remember doing so. The plaintiffs later attempted to retreat from those depositions in declarations, but even in those documents they alleged only that they had a 'vague understanding' of Apple's policies, Koh wrote.

'A vague 'understnding' about Apple's privacy policies is not enough,' she wrote. 'To survive summary judgment, plaintiffs are required to set forth 'specific facts' in support of standing.'

That may be a difficult hurdle for plaintiffs to clear, said Eric Goldman, director of the High Tech Law Institute at Santa Clara University.

'It's very hard for consumers to prove that they have read any particular item in the marketplace,' he said. 'If future plaintiffs have to make the same showing, they have no chance of winning.'

Koh noted in the order that she had put plaintiffs on notice about the holes in their case. This ruling underscores that she will not allow sputtering suits to remain on her docket for long, Goldman said.

'This opinion is dripping with frustration that the plaintiffs didn't deliver what she asked for,' Goldman said. 'She's going to wield the ax on cases that aren't making progress, and I think this is a good example of how aggressively she'll swing that ax.'

Julia Love writes for The Recorder, the San Francisco-based ALM sibling of Internet Law & Strategy, She can be reached at [email protected].

A federal judge has disposed of one of the most mature privacy class actions filed against a Silicon Valley company, concluding that plaintiffs' claims against Apple Inc. were doomed by their ignorance of its policies.

In an order issued on Nov. 25, U.S. District Judge Lucy Koh granted Apple's motion for summary judgment that plaintiffs lack standing and failed to turn up facts to support claims they filed under California's Unfair Competition Law and Consumer Legal Remedies Act. Represented by New York-based KamberLaw, the plaintiffs accused Apple of allowing apps to harvest personal information from iPhone, iPad and iPod Touch users and tracking their locations. They claimed they would not have paid so much for their Apple products if they had known how much information the company was collecting.

But Apple's lawyers at Gibson Dunn & Crutcher challenged whether consumers take privacy concerns into account as they decide which products to buy. Koh stressed that plaintiffs could not have been harmed by Apple's statements about privacy unless they relied on them.

'Critically, none of the plaintiffs presents evidence that he or she even saw, let alone read and relied upon, the alleged misrepresentations contained in the Apple Privacy Policies,' Koh wrote. 'The Court questions how one can act in reliance on a statement one does not see, read, or hear.'

As most of the data privacy suits levied against Valley companies have been thwarted with a motion to dismiss or settled soon after, In re iPhone Application, 11-2250 was among the first to reach the juncture of class certification, lawyers said. But Koh hobbled the case at that hurdle, denying the plaintiffs' motion for class certification as moot in light of her other ruling in Apple's favor.

The case raised eyebrows among groups monitoring privacy litigation, including the U.S. Chamber Institute for Legal Reform, which flagged it as an 'extreme example' of the suits targeting Valley companies. Former Gibson Dunn partner Ashlie Beringer argued the motion for class certification before joining Facebook as a vice president and deputy general counsel.

Scott Kamber of KamberLaw suggested that Koh's decision not to address the merits of the underlying claims might create an opening for plaintiffs.

'While we are disappointed in the decision and working with our clients to evaluate their options, it is worth noting that Judge Koh denied Apple's motion in so far as Apple claimed there was no injury,' he wrote in an e-mail.

The case seemed to turn for Koh on the plaintiffs' depositions. She noted in her order that plaintiffs either conceded that they had not reviewed Apple's policies before purchasing their devices or could not remember doing so. The plaintiffs later attempted to retreat from those depositions in declarations, but even in those documents they alleged only that they had a 'vague understanding' of Apple's policies, Koh wrote.

'A vague 'understnding' about Apple's privacy policies is not enough,' she wrote. 'To survive summary judgment, plaintiffs are required to set forth 'specific facts' in support of standing.'

That may be a difficult hurdle for plaintiffs to clear, said Eric Goldman, director of the High Tech Law Institute at Santa Clara University.

'It's very hard for consumers to prove that they have read any particular item in the marketplace,' he said. 'If future plaintiffs have to make the same showing, they have no chance of winning.'

Koh noted in the order that she had put plaintiffs on notice about the holes in their case. This ruling underscores that she will not allow sputtering suits to remain on her docket for long, Goldman said.

'This opinion is dripping with frustration that the plaintiffs didn't deliver what she asked for,' Goldman said. 'She's going to wield the ax on cases that aren't making progress, and I think this is a good example of how aggressively she'll swing that ax.'

Julia Love writes for The Recorder, the San Francisco-based ALM sibling of Internet Law & Strategy, She can be reached at [email protected].