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Opperman v. Path, Inc.

United States District Court, Ninth Circuit

May 6, 2013

MARC OPPERMAN, et al., Plaintiffs,
PATH, INC., et al., Defendants.


JON S. TIGAR, District Judge.

Before the Court are three motions to sever filed by Defendants Twitter, Inc., ECF No. 236, Electronic Arts, Inc. and Chillingo, Ltd., ECF No. 256, and Instagram, Inc., ECF No. 272. Pursuant to Civil Local Rule 7-1(b), the Court hereby finds these motions appropriate for resolution without oral argument, and therefore VACATES the motion hearings scheduled for May 9, 2013. In consideration of the moving papers and related briefing, the Court will deny the motions without prejudice.


This proposed class action was filed on March 12, 2012, in the Western District of Texas, ECF No. 1. The Western District of Texas transferred the action to this Court on January 15, 2013. ECF No. 218.

The operative Second Amended Complaint ("SAC"), ECF No. 103, brings suit against Apple, Inc. and sixteen entities engaged in or owning an interest in entities engaged in the development of Applications ("Apps") installed on Plaintiffs' mobile devices, which are manufactured by Apple ("iDevices") and distributed via Apple's App Store. The original complaint was filed in response to news reports in February 2012, including a February 15, 2012 article reporting that "the Apps Foodspotting, Foursquare, Gowalla, Hipster, Instagram, Kik Messenger, Path, Twitter, Yelp!, and (via Defendant Chillingo's integrated Crystal platform) Angry Birds Classic and Cut the Rope ... were engaged in surreptitiously transmitting iDevice owners' private, personal address book materials to unapproved recipients." Id . § 5. The SAC alleges that each developer violated federal and state law because "the Apps made by Defendants stole their iDevice address books by surreptitiously initiating unnoticeable Internet calls with Plaintiffs' iDevices and transmitting their address books to unauthorized persons." SAC § 2. The SAC defines the proposed class as follows:

Plaintiffs and all owners of iDevices who obtained Apps from Apple's App Store that without requesting the iDevice owner's prior consent initiated an unauthorized iDevice call following which the owner's address book materials were copied, uploaded, transmitted, and/or disclosed to others and/or remotely stored and/or otherwise remotely used by others, including any of the following Apps: Angry Birds Classic, Crystal, Cut the Rope, Foursquare, Foodspotting, Gowalla, Hipster, Kik Messenger, Instagram, Path, Twitter, or Yelp! (the "Class") and who were damaged thereby.

Id. § 46.

A. Allegations Related to Apple

Plaintiffs allege that Apple designed, manufactured, marketed, and sold the iDevices at issue. Id . § 84. Those iDevices are Apple's iPhone, iPad, and iPod Touch. Id . Each iDevice comes with certain pre-installed Apps, including the "Contacts" App, which makes it possible for users to store their address book contacts on their iDevices. Id . § 89-92. The pre-installed App Store App is a central repository for marketing and distributing other Apps designed by Apple or third parties. Id . § 93-95. In order to oversee the inclusion of third-party Apps in the App Store, Apple created the iOS Developer Program; App developers pay a fee in order to participate in the program, and if they charge users for their Apps, Apple charges them thirty percent of App revenue. Id . § 98. The only way to obtain a third party App on an iDevice is to use the App Store. Id . § 102.

Not all Apps submitted by third party developers make it onto the App store. Apple's iOS Developer Program functions as Apple's "testing, review and legal clearance process." Id . § 105. Through that program, Apple promulgated standards and guidelines by which App developers must comply in order to distribute Apps through Apple's App Store. Id . § 105-08. Plaintiffs allege that Apple "purports to review every app on the App Store based on a set of technical, content, and design criteria, as well as for reliability, offensive material, malware and privacy issues." Id . § 114.

Through the program, Apple also provides "editing software, simulators, forums, guides, design and Approval criteria, code, code resources and libraries, performance enhancing tools, testing software, and mentoring via access to Apple engineers who provide... code-level assistance, helpful guidance, [and] point [the developer] towards the Appropriate technical documentation to fast-track [his/her] development process.'" Id . § 111. Plaintiffs allege that, while Apple promises consumers that its operating system protects their privacy, "Apple's tutorials and developer sites specifically teach App developers how to code and create Apps that non-consensually access, manipulate, alter, use and upload the address book maintained on an owner's iDevice." Id . § 112. Nevertheless, Apple's program guidelines state that "Private data - like address books - may not be obtained without the users' consent." Id . § 118.

Plaintiffs allege that Apple has represented to its users that apps such as those discussed in the SAC would respect users' privacy: "Apple assures consumers such as Plaintiffs that Apps from Apple's curated App Store' are rigorous[ly] review[ed], ' tested for compliance with numerous guidelines, and do not suck up consumers' private information.' During a September 2008 public presentation, Apple CEO Steve Jobs similarly stated, albeit falsely in retrospect, that the App Store was not going to distribute malicious apps or apps that invade your privacy' and that the App Store supposedly provided Plaintiffs and consumers, freedom from programs that steal your private data [and] freedom from programs that trash your battery.'" Id . § 127. As part of those representations, Plaintiffs allege that Apple tells its developers that "the Address Book database is ultimately owned by the user." Id . § 129.

In contrast, according to the SAC, Apple's guidelines for designing apps, called iOS Human Interface Guidelines, encourage developers to steal users' private data without consent; the guidelines tell developers, for example, that "[w]hen it makes sense, don't force people to give you information you can easily find for yourself, such as their contacts or calendar information." Id . § 133. The guidelines also allegedly tell developers: "If possible, avoid requiring users to indicate their agreement to your EULA [End User License Agreement] when they first start your application." Id.

The SAC alleges that Apple failed in its review process to exclude apps that surreptitiously steal users' private address books, and that it has failed to disclose the vulnerabilities in its operating ...

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