The opinion of the court was delivered by: Honorable Gary Allen Feess
LINKS: 13 (12-1562); 12 (12-1564)
Present: The Honorable GARY ALLEN FEESS
Renee Fisher None N/A Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Proceedings: (In Chambers)
ORDER RE: MOTIONS TO REMAND
Plaintiffs initiated this class action lawsuit in state court. Defendants removed to federal court on the basis of federal question jurisdiction. Defendants contend that the issues presented in this lawsuit are completely pre-empted by the Federal Wiretap Act. Plaintiffs contend that there is no controlling authority for that proposition, that the case is a local controversy that arises under the California Invasion of Privacy Act, and move to have the action remanded to state court. For reasons discussed in greater detail below, the Court concludes that the Federal Wiretap Act does not completely pre-empt the relevant field and that the motion is therefore meritorious.
I. INTRODUCTION & BACKGROUND
These cases are identical putative class actions brought against Defendant Carrier IQ, Inc. ("Carrier IQ"), which developed and maintains a software that is installed on cell phones and surreptitiously records the user's keystrokes, text messages and passwords without the user's knowledge or consent. (Leong Docket No. 1, Eckert Docket No. 1 [Not. of Removal], Ex. A. [First Amend. Compl. ("FAC")] ¶ 2.) Plaintiffs allege that they are California residents who are victims of the secret harvesting of their cell phone communications. They contend that the secret, non-consensual collection of their private data violates California's Invasion of Privacy Act, Cal. Penal Code §§ 630 et seq., and constitutes an unlawful business practice within the meaning of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200 et
. (Id. ¶¶ 3, 5, 14, 19--21.).
The information supporting this lawsuit was apparently first disclosed in November 2011 when an individual posted on an Internet blog allegations that Carrier IQ's software, which is installed on various manufacturer's cell phones, collects the contents of cell phone users' electronic communications without their knowledge. (Leong Docket No. 16-1, Eckert Docket No. 13-1 [Second Newby Decl.] ¶ 1.) Since December 1, 2011, 72 federal class actions have been filed in more than 25 judicial districts naming Carrier IQ and various cell phone manufacturers as defendants and alleging similar claims under the Federal Wiretap Act, 18 U.S.C. §§ 2510 et seq., which is part of the 1986 Electronic Communications Privacy Act ("ECPA") ("Consumer Privacy Cases"). (Not. of Removal ¶ 4; Second Newby Decl. ¶ 2; Leong Docket No. 3, Eckert Docket No. 3 [Newby Decl.] ¶¶ 2--3.) Some of these cases include additional claims, based on the same underlying facts, for violations of the Stored Communications Privacy Act, 18 U.S.C. §§ 2701 et seq., and state privacy, consumer, and business laws. (Second Newby Decl. ¶ 2 n.1.) On December 2 and 9, 2011, the plaintiffs in two such cases filed separate motions with the U.S. Judicial Panel on Multidistrict Litigation ("JMPL") pursuant to 28 U.S.C. § 1407, to transfer and consolidate related actions to the Northern District of California or to the District Court of Delaware. (Second Newby Decl. ¶¶ 3--4; Newby Decl. ¶ 4.) On March 29, 2012, the MDL panel heard oral argument on these motions, and no party opposed transfer of the Consumer Privacy Cases to a single court for pre-trial coordination. (Second Newby Decl. ¶¶ 4--5; Newby Decl. ¶¶ 5--6.)
Plaintiffs filed the present actions in Los Angeles Superior Court on
December 2, 2011 in the midst of this litigation flurry. Their
original state court complaints alleged the same California law causes
of action on behalf of a nationwide class. (Second Newby Decl. ¶ 7,
Ex. A [Compl.] ¶ 22.) On December 6, 2011, Plaintiffs filed FACs
alleging classes of California consumers only. (FAC ¶ 22.)*fn1
In February of 2012, Plaintiffs in each action filed
declarations of dismissal of class action claims against all diverse
defendants, leading to their dismissal from the actions. (Newby Decl.
¶¶ 9--10.) On February 23, 2012, Carrier IQ removed the actions to
this Court, alleging federal question jurisdiction under 28 U.S.C. §
1331 on the basis that the
Federal Wiretap Act completely preempts California's Invasion of
Privacy Act. (Not. of Removal ¶ 7.) Plaintiffs now move to remand,
arguing that the California law is not preempted. (Leong Docket No.
13; Eckert Docket No. 12.) Leong additionally argues that Defendant's