Strong et al v. LifeStance Health Group Incorporated
Filing
56
ORDER granting in part and denying in part 41 Motion to Dismiss. The parties are directed to meet, confer, and develop a Rule 26(f) Joint Case Management Report, which must be filed within 2 weeks of the date of this order. The parties shall file a proposed Case Management Order containing all the proposed dates at the same time they file the Rule 26(f) Case Management Report. Signed by Judge Krissa M Lanham on 1/27/25. (DXD)
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
Montana Strong, et al.,
10
Plaintiffs,
11
v.
12
LifeStance Health Group Incorporated,
13
Defendant.
No. CV-23-00682-PHX-KML
ORDER
14
15
Montana Strong and Debra Yick filed this suit against LifeStance Health Group,
16
Inc., alleging federal and state claims based on tracking technology LifeStance allegedly
17
used on its website. LifeStance seeks dismissal of all claims but most of plaintiffs’ claims
18
are adequately pleaded. Therefore, the motion to dismiss is granted in part and denied in
19
part. Plaintiffs’ intrusion-upon-seclusion claim is dismissed without leave to amend and
20
their other claims may proceed.
I.
21
Factual Background
22
LifeStance is a mental healthcare company that offers “outpatient care services via
23
in-person locations and telemedicine.” (Doc. 32 at 5.1) LifeStance has 600 locations and
24
“employs more than 5,200 psychiatrists, advance practice nurses, psychologists and
25
therapists.” (Doc. 32 at 5.) Those professionals provide treatment for conditions such as
26
depression, PTSD, and bipolar disorder. (Doc. 32 at 22.) LifeStance markets and provides
27
its services through a website, www.LifeStance.com. (Doc. 32 at 4.) Opting “to put its
28
1
The record citations are to the pagination generated by ECF.
1
profits over the privacy of its Users, . . . LifeStance installed certain tracking technologies
2
on its website in order to intercept and to send personally identifiable information (‘PII’)
3
and protected health information (‘PHI’)2 . . . to third parties such as Meta Platforms, Inc.
4
d/b/a Facebook3 . . . without the informed consent of its users.” (Doc. 32 at 6.) The tracking
5
technology central to this case is known as the “Meta Pixel,” or simply “the Pixel.”
6
The Pixel is “[i]nvisible to the naked eye” and “is a piece of code that tracks people
7
and [the] type of actions they take as they interact with a website.” (Doc. 32 at 6.) The
8
tracked actions include “which buttons the person clicks” and “the text or phrases they type
9
into various portions of the website.” (Doc. 32 at 6.) The Pixel duplicates the user’s
10
communications and “send[s] those communications to Facebook.” (Doc. 32 at 30.) This
11
transmission to Facebook “occurs contemporaneously, invisibly and without the [user’s]
12
knowledge.” (Doc. 32 at 30.) The information captured by the Pixel and sent to Facebook
13
“is then linked to users’ unique Facebook user ID . . . which allows Facebook and other
14
third parties to personally identify those users and associates their private information with
15
their Facebook profiles.” (Doc. 32 at 6–7.)
16
Based on the ability to match the information the Pixel sends to Facebook with a
17
Facebook user ID, plaintiffs claim “there is no anonymity in the information disclosed to
18
Facebook.” (Doc. 32 at 7.) According to plaintiffs, the Pixel “disclosed information that
19
allows a third party (e.g., Facebook) to know when and where a specific patient was seeking
20
confidential medical care, for what mental health condition, and the precise care they
21
sought or received.” (Doc. 32 at 8.) “Facebook, in turn, sells users’ [private information]
22
to third-party marketers who geo-target plaintiffs’ and class members’ Meta accounts”
23
based on that information. (Doc. 32 at 8.)
24
II.
Parties and Claims
25
Plaintiff Montana Strong is a resident of New York, plaintiff Debra Yick is a
26
resident of California, and LifeStance is a Delaware corporation with its principal place of
27
28
2
This order refers to PII and PHI collectively as “private information.”
3
The parties appear to use “Facebook” and “Meta” interchangeably and the court does the
same.
-2-
1
business in Arizona. (Doc. 32 at 15.) While in New York, Strong accessed LifeStance’s
2
website to locate mental health providers in New York, “communicate with healthcare
3
providers, research particular medical concerns and treatments, fill out forms, [and]
4
schedule and attend appointments.” (Doc. 32 at 62-63.) While using the website, Strong
5
also “provided her medical history and her height, weight and ethnicity.” (Doc. 32 at 63.)
6
As for Yick, she accessed the website while she was in California, and she performed
7
similar tasks to Strong. (Doc. 32 at 64-64.) Both Strong and Yick subsequently received
8
“targeted advertisements” on their social media accounts, including advertisements
9
relevant to their particular mental health conditions. (Doc. 32 at 64.)
10
Based on LifeStance’s use of the Pixel and the parties’ locations, the complaint
11
alleges claims under federal, Arizona, New York, and California law. Strong and Yick
12
together allege a federal and Arizona state-law claim on behalf of a putative nationwide
13
class that includes all individuals in the United States who visited the website and had their
14
private information disclosed. Strong separately alleges a claim under New York law and
15
seeks to represent a New York class that includes all individuals in New York who had
16
their private information disclosed. And Yick separately alleges claims under California
17
law and seeks to represent a California class including all individuals in California who
18
had their private information disclosed.
19
20
The amended complaint asserts the following eight claims on behalf of the identified
groups:
21
1. Violation of the California Invasion of Privacy Act (California class);
22
2. Violation of the California Confidentiality of Medical Information Act
23
(California class);
24
3. Violations of Electronic Communications Privacy Act (Nationwide class);
25
4. Violation of California Unfair Competition Law (Unlawful Business
26
27
28
Practices Prong) (California class);
5. Violation of the California Unfair Competition Law (Unfair Prong)
(California class);
-3-
1
6. Violation of the Arizona Consumer Fraud Act (Nationwide class);
2
7. Violation of New York General Business Law (New York class);
3
8. Arizona Common Law Invasion of Property (Nationwide class).
4
In briefing the motion to dismiss, the parties grouped the analysis of similar claims
5
together. The court does the same here.
6
III.
Legal Standard
7
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
8
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
9
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
10
(internal citations omitted)). This is not a “probability requirement,” but a requirement that
11
the factual allegations show “more than a sheer possibility that a defendant has acted
12
unlawfully.” Id. A claim is facially plausible “when the plaintiff pleads factual content that
13
allows the court to draw the reasonable inference that the defendant is liable for the
14
misconduct alleged.” Id. “[D]etermining whether a complaint states a plausible claim is
15
context specific, requiring the reviewing court to draw on its experience and common
16
sense.” Id. at 663–64.
17
IV.
Wiretap Claims
18
Plaintiffs’ sole claim under federal law is a wiretap claim under the Electronic
19
Communications Privacy Act (the “Wiretap Act”), 18 U.S.C. § 2511(1). Yick brings a
20
similar claim under section 931(a) of the California Invasion of Privacy Act (“CIPA”).
21
Much of the analysis for the Wiretap Act and CIPA “is the same[.]” Brodsky v. Apple Inc.,
22
445 F. Supp. 3d 110, 127 (N.D. Cal. 2020) (quotation omitted); see also In re Meta Pixel
23
Healthcare Litigation, 647 F. Supp. 3d 778, 798 (N.D. Cal. 2022) (analyzing Wiretap Act
24
claim and then only analyzing defendant’s additional defense under CIPA). But here,
25
LifeStance makes certain arguments that apply only to CIPA such that it is simplest to
26
separate the two.
27
28
A. Wiretap Act Claim
“The Wiretap Act provides a civil cause of action to ‘any person whose wire, oral,
-4-
1
or electronic communication is intercepted, disclosed, or intentionally used in violation of
2
[18 U.S.C. §§ 2510–2523].’” Bliss v. CoreCivic, Inc., 978 F.3d 1144, 1147 (9th Cir. 2020)
3
(quoting 18 U.S.C. § 2520(a)). LifeStance argues parties to communications (like
4
LifeStance was here) generally cannot be held liable under the Wiretap Act and no
5
exception to that rule applies under the facts alleged in the complaint.
6
Normally, a person who intercepts a “wire, oral, or electronic communication”
7
cannot be liable under the Wiretap Act if that person was “a party to the communication.”
8
18 U.S.C. § 2511(2)(d). But a party to a communication may be liable if the
9
“communication is intercepted for the purpose of committing any criminal or tortious act
10
in violation of the Constitution or laws of the United States or of any State.” Id. This
11
provision that allows for a party to a communication to be found liable is often referred to
12
as the “crime-tort exception.” R.C. v. Walgreen Co., No. EDCV 23-1933 JGB (SPX), 2024
13
WL 2263395, at *15 (C.D. Cal. May 9, 2024).
14
The crime-tort exception requires “the purpose for the interception—its intended
15
use—[be] criminal or tortious.” Sussman v. Am. Broad. Companies, Inc., 186 F.3d 1200,
16
1202 (9th Cir. 1999). “[T]he existence of a lawful purpose does not mean that the
17
interception is not also for a tortious or unlawful purpose.” Id. For example, the crime-tort
18
exception may apply when a communication was intercepted “for the purpose of
19
committing unfair business practices.” Deteresa v. Am. Broad. Companies, Inc., 121 F.3d
20
460, 467 n.4 (9th Cir. 1997).
21
Plaintiffs allege the crime-tort exception applies based on various theories,
22
including that LifeStance’s interception and relaying of plaintiffs’ information to Meta
23
violated the Health Insurance Portability and Accountability Act (“HIPAA”).4 (See Docs.
24
32 at 81–82, 47 at 11.) Plaintiffs need only establish a single plausible basis to take
25
advantage of the crime-tort exception. See 18 U.S.C. § 2511(2)(d) (the party exception to
26
4
27
28
The complaint alleges LifeStance used the allegedly HIPAA-protected information “to
improve its advertising and bolster its revenues.” (Doc. 32 at 21.) That is, the purpose of
the interception was to violate HIPAA to improve advertising. As recently noted in a
similar case, “alleging a defendant intercepted data to use the data in violation of criminal
or tort laws suffices to invoke the crime-tort exception.” Castillo v. Costco Wholesale
Corp., No. 2:23-CV-01548-JHC, 2024 WL 4785136, at *5 (W.D. Wash. Nov. 14, 2024).
-5-
1
the Wiretap Act does not apply if the communication “is intercepted for the purpose of
2
committing any criminal or tortious act.”) (emphasis added). Thus, the wiretap claim can
3
proceed if plaintiffs plausibly alleged LifeStance’s interception was done to violate
4
HIPAA.
5
HIPAA makes it a federal crime to disclose “individually identifiable health
6
information” (“IIHI”). 42 U.S.C. § 1320d-6(a)(3). Information is IIHI if it (1) is “created
7
or received by” a healthcare provider, (2) “relates to the past, present, or future physical or
8
mental health or condition of an individual, the provision of health care to an individual,
9
or the past, present, or future payment for the provision of health care to an individual,”
10
and (3) either “identifies the individual” or provides a reasonable basis to identify the
11
individual. 42 U.S.C. § 1320d(6)(A)–(B). LifeStance argues the information allegedly
12
disclosed through the Pixel fails all three prongs.5 (See Doc. 41 at 15–17.) That is,
13
LifeStance claims IIHI was not disclosed because (1) plaintiffs alleged Meta, not
14
LifeStance, created and received the purported IIHI; (2) the information the Pixel
15
purportedly transmitted to Meta does not “identif[y] or provide[ ] a reasonable basis to
16
identify any individuals”; and (3) the information the Pixel purportedly transmitted does
17
not qualify as related to physical or mental health. (Doc. 41 at 15–16.)
18
LifeStance’s arguments regarding IIHI depend in part on the complaint’s allegations
19
regarding how the Pixel interacts with “cookies.” Cookies “are small files of information
20
that a web server generates and sends to a web browser” that “help inform websites about
21
the user, enabling the websites to personalize the user experience.” (Doc. 32 at 21.) The
22
Pixel—“which is embedded in and throughout” LifeStance’s website (Doc. 32 at 41)—
23
“can access [ ] cookie[s] and send certain identifying information like the User’s Facebook
24
ID to Facebook along with the other data relating to the User’s Website inputs.” (Doc. 32
25
at 21.)
LifeStance attacks the first IIHI requirement that information be “created or
26
27
28
LifeStance’s motion does not list the second requirement that the information relate to an
individual’s physical or mental health or condition. (Doc. 41 at 15.) But LifeStance argues
the type of information the Pixel disclosed does not qualify as IIHI, presumably an
argument made based on the second requirement. (Doc. 41 at 16.)
5
-6-
1
received” by a healthcare provider by claiming “the only identifying information at issue
2
are Facebook’s cookies, which are both ‘created’ and ‘received’ by Facebook—not
3
Lifestance.” (Doc. 41 at 16.) In other words, LifeStance argues the purported IIHI was
4
neither “created” nor “received” by LifeStance. LifeStance may have abandoned this
5
exceptionally-weak argument by failing to mention it in the reply.
6
Assuming LifeStance has not abandoned this argument, the complaint alleges that
7
when an individual visits the website, the Pixel tracks everything the visitor does on the
8
website, including “which pages they view and the text or phrases they type into various
9
portions of the website (such as a general search bar, chat feature or text box).” (Doc. 32
10
at 6.) After that, the Pixel tracks when visitors are waiting in telehealth waiting rooms for
11
appointments with treatment providers, searches for which were also tracked through the
12
Pixel. (Doc. 32 at 8.) The Pixel also has the capability to access a “Facebook-specific
13
cookie” that includes a Facebook ID.6 (Doc. 32 at 20.) The Pixel then “send[s] certain
14
identifying information like the User’s Facebook ID to Facebook along with the other data
15
relating to the User’s Website inputs.” (Doc. 32 at 20.) Accepting the allegations as true,
16
the Pixel captures information, packages it with information gleaned from a preexisting
17
cookie, and transmits the combined information to Meta. Thus, identifying information is
18
created and received by LifeStance such that the first requirement for IIHI is met.
19
The second requirement for IIHI is that the information must “relate[] to the past,
20
present, or future physical or mental health or condition of an individual.” 42 U.S.C.
21
§ 1320d(6)(B). LifeStance argues the “type of data that was allegedly transmitted fall[s]
22
well short” of relating to mental or physical conditions. (Doc. 41 at 16.) According to
23
LifeStance, the Pixel only captured and transmitted relatively banal information such as
24
the pages a user visited. In support of this argument, LifeStance cites to Hartley v.
25
University of Chicago Medical Center, No. 22-C-5891, 2023 WL 7386060, at *2 (N.D. Ill.
26
Nov. 8, 2023). (See Doc. 41 at 16.) But the information allegedly transmitted in Hartley
27
Plaintiffs allege Facebook IDs “allow[ ] Facebook and other third parties to personally
identify [ ] those Users and associate[ ] their Private Information with their Facebook
profiles.” (Doc. 32 at 6–7.)
6
28
-7-
1
appears to have been more limited than what was transmitted in the present case.
2
The plaintiffs in Hartley brought a Wiretap Act claim against their healthcare
3
provider which maintained a website to communicate with its patients. Id. at *1. The
4
plaintiffs alleged their IIHI had been transmitted to Facebook via the Pixel and the plaintiffs
5
invoked the crime-tort exception. Id. The information allegedly transmitted was the
6
plaintiffs’ “IP addresses, Facebook IDs, cookie identifiers, device identifiers and account
7
numbers and the contents of thee [sic] communications, i.e., ‘URLs, buttons, pages, and
8
tabs they click and view.’” Hartley, 2023 WL 7386060, at *2. The Hartley court concluded
9
that information did not qualify as IIHI because the plaintiffs had failed to allege “any
10
particular health or treatment information disclosure specific as to them that [the defendant]
11
allegedly made” to a third party. Id. (citation omitted).
12
The disclosures alleged in Hartley are different from those alleged here, as plaintiffs
13
make clear. (See Doc. 47 at 18.) In the present case, the Pixel operated to disclose plaintiffs’
14
“specific health conditions” which they included in a sealed version of their complaint.
15
Plaintiffs also alleged the disclosure of their “communicat[ions] with healthcare providers,
16
[their] researching [of] particular medical concerns and treatments,” and their “performing
17
[of] other tasks related to their specific medical inquires and treatment.” (Doc. 47 at 18
18
(citing Doc. 32).) Unlike Hartley, plaintiffs’ allegations are not merely “generalizations as
19
to what [defendant] was communicating to Facebook.” Id. Thus, the type of data the Pixel
20
allegedly transmitted in this case plausibly qualifies as the type of data protected by
21
HIPAA.
22
Finally, LifeStance argues the information was not IIHI because it did not identify
23
the individual or provide a reasonable basis to identify the individual. 42 U.S.C.
24
§ 1320d(6)(B). But plaintiffs allege the information LifeStance transmitted to Meta
25
included their “name and email, their medical conditions, treatment and/or specific
26
providers,” and “Facebook IDs, IP addresses and/or device IDs.” (Doc. 32 at 41, 44.) It is
27
difficult to understand what more LifeStance believes would be necessary for information
28
to be identifying.
-8-
1
The complaint alleges the Pixel deployed by LifeStance captured information
2
received by LifeStance and then packaged it with cookies created by Facebook to transmit
3
both the medical information and identifying information to Facebook. Based on these
4
allegations, plaintiffs sufficiently pleaded LifeStance received and disclosed IIHI.
5
Accordingly, plaintiffs plausibly pleaded LifeStance intercepted the communications for
6
the purpose of violating HIPAA. LifeStance has not argued that a violation of HIPAA
7
would not be sufficient to invoke the crime-tort exception and other district courts
8
analyzing similar allegations have held otherwise. See Castillo v. Costco Wholesale Corp.,
9
No. 2:23-CV-01548-JHC, 2024 WL 4785136, at *7 (W.D. Wash. Nov. 14, 2024);
10
Kurowski v. Rush Sys. for Health, No. 22C5380, 2023 WL 8544084, at *2-*3 (N.D. Ill.
11
Dec. 11, 2023). The request to dismiss plaintiffs’ Wiretap Act claim is denied.
12
B. California Invasion of Privacy Act (“CIPA”) Claim
13
LifeStance seeks dismissal of plaintiffs’ CIPA claim arguing: (1) CIPA’s first clause
14
does not apply to internet communications; (2) any communication of plaintiffs’
15
information to Meta using a non-Pixel method mentioned in the complaint is not actionable
16
under CIPA; (3) plaintiffs do not sufficiently allege data was sent, received, or intercepted
17
in California; and (4) plaintiffs fail to adequately allege LifeStance aided or abetted
18
wrongdoing by Meta.7 (See Doc. 41 at 19–23.) None of these arguments succeed.
19
Courts have interpreted the relevant provision of CIPA, Cal. Penal Code § 631(a),
20
as containing two clauses that apply to different situations.8 The “first clause” of that
21
provision has been interpreted as “applying only to communications over telephones and
22
7
23
24
25
26
27
28
LifeStance also argues it is exempt from CIPA because the same party exception that
applies to the Wiretap Act applies to CIPA. (Doc. 41 at 20, 21.) But LifeStance recognizes
the crime-tort exception recognized in federal law would apply to CIPA as well. Because
the crime-tort exception applies to the federal claim here, there is no need to analyze that
argument separately under CIPA. (See Doc. 41 at 20.)
8
The first clause creates liability for “any person who by means of any machine,
instrument, or contrivance, or in any other manner, intentionally taps, or makes any
unauthorized connection, whether physically, electrically, acoustically, inductively, or
otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the
wire, line, cable, or instrument of any internal telephonic communication system[.]” Cal.
Penal Code § 631(a). The second clause creates liability for individuals who “read[ ] or
attempt[ ] to read, or to learn the contents or meaning of any message, report, or
communication while the same is in transit or passing over any wire, line or cable, or is
being sent from, or received at any place within this state[.]” Id.
-9-
1
not through the internet.” Licea v. Am. Eagle Outfitters, Inc., 659 F. Supp. 3d 1072, 1079
2
(C.D. Cal. 2023). But CIPA’s second clause indisputably applies to internet
3
communications. See, e.g., Javier v. Assurance IQ, LLC, No. 21-16351, 2022 WL 1744107,
4
at *1 (9th Cir. May 31, 2022) (“Though written in terms of wiretapping, Section 631(a)
5
applies to Internet communications.”). Plaintiffs rely only on the second clause, as they
6
make abundantly clear by quoting CIPA in the complaint but omitting the first clause.
7
(Doc. 32 at 74.) LifeStance’s argument regarding the applicability of the first clause is
8
irrelevant. (Doc. 41 at 20.)
9
LifeStance’s second argument aimed at the CIPA claim is that any sharing of
10
plaintiffs’ information with Meta is not actionable to the extent the claim is based on CAPI,
11
a non-Pixel technology mentioned in the complaint. (Doc. 41 at 21.) According to
12
LifeStance, CAPI involves a “two-step process” of LifeStance “record[ing] its own
13
communications and then shar[ing] those recordings” with Meta. (See Doc. 41 at 21.) Even
14
assuming this is how CAPI operated, this argument fails at the motion-to-dismiss stage.
15
(See Doc. 41 at 21.)
16
LifeStance may be correct that it did not violate CIPA if only CAPI technology is
17
at issue. That is, if the transmission of information to Meta only occurred after LifeStance
18
already received the information from the plaintiffs, rather than contemporaneously, CIPA
19
may not apply. See Graham v. Noom, 533 F. Supp. 3d 823, 831 (N.D. Cal. 2021) (“Under
20
CIPA, a party to a communication does not violate the statute where it records its own
21
communications and then shares those recordings.”). But the court need not wade into this
22
issue because CAPI is merely an alternative basis for the CIPA claim. Thus, the CIPA
23
claim based on the Pixel’s alleged simultaneous transmission can proceed regardless of
24
whether CAPI was also used.
25
LifeStance’s third argument for dismissing the CIPA claim is the complaint does
26
not allege plaintiffs’ information was “sent from[ ] or received at any place within
27
[California].” (Doc. 41 at 22 (citing Cal. Penal Code § 631(a).) Plaintiffs allege repeatedly
28
that some of the relevant conduct occurred in California. (See Doc. 32 at 15, 66–68, 74
- 10 -
1
(establishing Yick was in California at all relevant times and that the “communications
2
were intercepted in California where Meta is located.”).) That is sufficient.
3
LifeStance’s final argument involves what one court labeled the “fourth prong” of
4
CIPA. Javier v. Assurance IQ, LLC, 649 F. Supp. 3d 891, 897 (N.D. Cal. 2023) (citing Cal.
5
Penal Code § 631(a)(4)). Under that prong, LifeStance may be liable if it aided and abetted
6
violations of CIPA by Facebook. LifeStance seems to argue it cannot be liable under this
7
theory because the complaint does not identify any wrongdoing by Facebook. But plaintiffs
8
have alleged LifeStance worked with Facebook to surveil visitors to the LifeStance website
9
to provide confidential information that Facebook then used itself, by selling it “to third-
10
party marketers who geo-target plaintiffs’ and class members’ Meta account.” (Doc. 32 at
11
8; See also Doc. 32 at 75 (LifeStance “intentionally inserted an electronic device that,
12
without the knowledge and consent of Plaintiffs and Class members, recorded and
13
transmitted their confidential communications with [LifeStance] to a third party.”); Doc.
14
32 at 74 (LifeStance “aided, employed, agreed with, and conspired with [Meta] and [other
15
third parties] to track and intercept Plaintiffs’ and Class Members’ internet
16
communications while using [LifeStance’s] Website.”).) As explained by another court, “if
17
a third party listens in on a conversation between the participants (even if one participant
18
consents to the presence of that third party), then the third party is liable under the second
19
prong [of § 631] (and the participant is often liable under the fourth prong).” Javier v.
20
Assurance IQ, LLC, 649 F. Supp. 3d 891, 897–98 (N.D. Cal. 2023).9
Taking plaintiffs’ well-pleaded facts as true, LifeStance’s arguments against the
21
22
CIPA claim fails and its motion to dismiss the claim is denied.
23
V.
24
25
26
27
28
Unfair Competition Claims
Yick alleges violations of the unfair and unlawful business practices prong of
9
LifeStance argues it cannot be liable under an aiding and abetting theory because of the
reasoning in Graham v. Noom, Inc., 533 F. Supp. 3d 823, 831–32 (N.D. Cal. 2021). But
Javier rejects the reasoning in Graham as inconsistent with the statutory text and guidance
from the California Supreme Court. Javier, 649 F. Supp. 3d at 900. The reasoning of Javier
is more persuasive. The allegations in the current case cast Facebook not as merely
providing software, such as the software vendor in Graham, but as a third-party that used
the data for itself, such as the software vendor at issue in Revitch v. New Moosejaw, LLC,
No. 18-CV-06827-VC, 2019 WL 5485330, at *1 (N.D. Cal. Oct. 23, 2019).
- 11 -
1
California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200, et seq.
2
Strong alleges a claim under Arizona’s Consumer Fraud Act (“AZCFA”), A.R.S. § 44-
3
1522. Although the complaint does not make entirely clear the analytical basis for these
4
claims, plaintiffs’ opposition to the motion to dismiss states they are based on omissions
5
and not misrepresentations. (Doc. 47 at 26 (“Plaintiff Yick premises her UCL claims on
6
LifeStance’s omissions”); Doc. 47 at 29 (“Plaintiffs Plead AZCFA Claims Based on
7
Material Omissions”).)
8
A. California Unfair Competition Claims
9
California’s UCL provides a cause of action for business practices that are (1)
10
unlawful, (2) unfair, or (3) fraudulent. Cal. Bus. & Prof. Code § 17200, et seq. Plaintiffs
11
bring claims under the unlawful and unfair prongs (see Doc. 32 at 84–89), with the claims
12
under both prongs centering on alleged omissions. In particular, Yick’s opposition specifies
13
the omissions were LifeStance’s “failure to disclose that it embedded tracking technologies
14
on its Website in order to collect and to disclose [private information] to third parties
15
without informed consent.” (Doc. 47 at 26.)
16
UCL claims based on nondisclosure like Yick’s are subject to Rule 9(b)’s
17
particularity standard. Kearns v. Ford Motor Co., 567 F.3d 1120, 1127 (9th Cir. 2009).
18
This requires allegations identifying the “the who, what, when, where, and how of the
19
misconduct charged.” Id. at 1124 (quotation marks and citation omitted). This particularity
20
standard applies to the requirement that Yick plead “actual reliance on the . . . omissions
21
at issue.” Great Pac. Sec. v. Barclays Cap., Inc., 743 F. App’x 780, 783 (9th Cir. 2018);
22
see also Durell v. Sharp Healthcare, 108 Cal. Rptr. 3d 682, 694 (Cal. Ct. App. 2010)
23
(discussing “actual reliance” under the “unlawful” prong of UCL). But these pleading
24
requirements are somewhat “relaxed in fraudulent omission cases.” Short v. Hyundai
25
Motor Co., 444 F. Supp. 3d 1267, 1279 (W.D. Wash. 2020). This relaxed approach is
26
necessary because “a plaintiff in a fraud by omission suit will not be able to specify the
27
time, place, and specific content of an omission as precisely as would a plaintiff in a false
28
representation claim.” Falk v. Gen. Motors Corp., 496 F. Supp. 2d 1088, 1098–99 (N.D.
- 12 -
1
Cal. 2007).
2
LifeStance presents three arguments in seeking dismissal of the UCL claims. First,
3
there are no allegations that a violation occurred in California. Second, Yick did not plead
4
actual reliance. And third, Yick did not plead any injury. (Doc. 41 at 24-26.) None of these
5
arguments is persuasive.
6
As previously noted in discussing the CIPA claim, there are numerous allegations
7
that some of the relevant conduct occurred in California. (See Doc. 32 at 15, 66–68, 74
8
(establishing Yick was in California at all relevant times and that the “communications
9
were intercepted in California where Meta is located.”).) Those allegations are sufficient
10
for purposes of the UCL claims.
11
LifeStance next contends Yick has not alleged she “actually relied” on any
12
omissions. (Doc. 41 at 24.) According to LifeStance, Yick needed to allege she “read,
13
understood, and actually relied on the” omissions. (Doc. 41 at 24.) Yick did allege she
14
“viewed and relied” upon LifeStance’s “privacy policies concerning the confidentiality of
15
information provided by patients.” (Doc. 32 at 86.) But LifeStance claims those allegations
16
are not enough because Yick did not allege she “read LifeStance’s Privacy Policy.” (Doc.
17
48 at 11.) Construed in the light most favorable to Yick, the allegations that she “viewed
18
and relied” on the policy include that she read the policy. Yick has adequately alleged
19
actual reliance.
20
Finally, LifeStance argues Yick has not alleged she “suffered any actual injury as a
21
result of any purported violation of the UCL.” (Doc. 41 at 25.) Yick responds she suffered
22
“loss of benefit of the bargain,” (Doc. 47 at 27), because she “lost money or property” in
23
the form of “payments to Defendant.” (Doc. 32 at 87.) “[A] plaintiff who has surrender[ed]
24
in a transaction more, or acquire[d] in a transaction less, than he or she otherwise would
25
have may bring a UCL claim.” In re Anthem, Inc. Data Breach Litig., 162 F. Supp. 3d 953,
26
985 (N.D. Cal. 2016) (quotation marks and citation omitted). Construed in the light most
27
favorable to Yick, she has alleged she suffered “benefit of the bargain” damages by paying
28
- 13 -
1
more than she otherwise would have paid.10 That is sufficient.
2
B. Arizona Consumer Fraud Claim
3
Plaintiffs’ claim under the Arizona Consumer Fraud Act (“ACFA”) is also based on
4
LifeStance failing “to disclose its use of tracking technologies.” (Doc. 47 at 29.) ACFA
5
prohibits
6
[t]he act, use or employment by any person of any deception,
deceptive or unfair act or practice, fraud, false pretense, false
promise, misrepresentation, or concealment, suppression or
omission of any material fact with intent that others rely on
such concealment, suppression or omission, in connection with
the sale or advertisement of any merchandise whether or not
any person has in fact been misled, deceived or damaged
thereby.
7
8
9
10
11
A.R.S. § 44-1522(A). As with the UCL claims, Rule 9(b)’s particularity standard applies
12
to an ACFA claim. Physicians Surgery Ctr. of Chandler v. Cigna Healthcare Inc., 609 F.
13
Supp. 3d 930, 941 (D. Ariz. 2022) (noting Arizona’s consumer fraud statute is subject to
14
Rule 9(b)’s particularity requirements).
15
Plaintiffs based their ACFA claim on allegations they “viewed and relied upon
16
[LifeStance’s] representations in its privacy policies concerning the confidentiality of
17
information [they] provided” to LifeStance, but those privacy policies contained material
18
omissions in violation of the ACFA. (Doc. 32 at 86.) LifeStance seeks dismissal of this
19
claim on a variety of grounds, none of which has merit.
20
“A claim under the ACFA’s omission clause requires proof that the omission is
21
material and made with intent that a consumer rely thereon.” Cheatham v. ADT Corp., 161
22
F. Supp. 3d 815, 830 (D. Ariz. 2016). According to LifeStance, plaintiffs have not alleged
23
LifeStance “‘intended’ to make any omission upon which a consumer would rely.” (Doc.
24
LifeStance argues Yick’s allegations are insufficient because she has not alleged she
“paid any money to LifeStance for the protection of [her] data from disclosure, rather than
for the procurement of services.” (Doc. 48 at 12.) While not developed, LifeStance appears
to be arguing “benefit of the bargain” damages are only appropriate when plaintiffs who
purchase a service make a separate payment for “protection of their data from disclosure.”
LifeStance has not cited any authority imposing such a requirement and no such
requirement is appropriate. See, e.g., In re iPhone Application Litig., 844 F. Supp. 2d 1040,
1072 (N.D. Cal. 2012) (finding injury based on “the allegedly overinflated cost of [a
device] as a result of the false statements regarding the . . . features of the device”).
10
25
26
27
28
- 14 -
1
41 at 29.) The complaint alleges LifeStance’s omissions violated industry standards, such
2
as the American Medical Association’s Code of Medical Ethics and FTC data security
3
guidelines. (Doc. 32 at 53-54.) LifeStance’s omissions also allegedly were contrary to
4
consumers’ “general expectation that their communications regarding healthcare with their
5
healthcare providers will be kept confidential” and LifeStance’s own privacy policies,
6
which reflect these principles. (Doc. 32 at 48, 95.) Allegations that LifeStance acted
7
contrary to broadly accepted standards and expectations are a sufficient basis to infer
8
LifeStance intended for consumer to rely upon the omissions. That is, it is plausible
9
LifeStance knew that disclosing its practices would be harmful to its business so it
10
intentionally chose not to disclose those practices. In doing so, LifeStance plausibly
11
intended for consumer to rely on the non-disclosure.
12
LifeStance’s next argument is plaintiffs have not alleged “an underlying sale or
13
advertisement of [services] as required under ACFA.”11 (Doc. 41 at 30.) The complaint
14
alleges plaintiffs started receiving services from LifeStance in March and June 2022 and
15
continued to receive those services until early 2023. (Doc. 32 at 63, 65.) LifeStance argues
16
this is not sufficiently specific and plaintiffs were required to identify the “specific
17
transaction” underlying their claim. (Doc. 41 at 30.) Given the relaxed pleading standard
18
for omissions, the present allegations are sufficient. LifeStance is aware of the exact dates
19
plaintiffs received services and requiring plaintiffs amend the complaint to list those dates
20
would have no utility.
21
Finally, LifeStance argues plaintiffs have not alleged they suffered a cognizable
22
injury. But as with the UCL claims, plaintiffs have alleged they “would not have used
23
[LifeStance’s] services” if they had known LifeStance was using the Pixel. (Doc. 32 at 86.)
24
In these circumstances, the payment of any amount to LifeStance is a cognizable injury.
25
See Cheatham, 161 F. Supp. 3d at 831 ( (D. Ariz. 2016) (plaintiff alleged cognizable injury
26
because she alleged “she would not have purchased her wireless security system but for
27
[the] violation of the ACFA”). Plaintiffs’ ACFA claim may proceed.
28
11
ACFA defines “merchandise” as including “services.” A.R.S. § 44-1521(5).
- 15 -
1
VI.
New York General Business Law
2
Strong alleges LifeStance violated New York General Business Law (“NYGBL”)
3
§ 349 which prohibits deceptive acts or practices. To state such a claim a plaintiff must
4
allege (1) the defendant’s conduct was consumer-oriented; (2) the defendant’s act or
5
practice was deceptive or misleading in a material way; and (3) the plaintiff suffered an
6
injury as a result of the deception. Kane v. Univ. of Rochester, No. 23-CV-6027-FPG, 2024
7
WL 1178340, at *16 (W.D.N.Y. Mar. 19, 2024) (simplified) (citing NYGBL § 349(h)).
8
Strong’s claim is based on conduct relating to LifeStance’s handling of plaintiffs’
9
private information. (Doc. 32 at 92–94.) She claims LifeStance promised to maintain the
10
privacy and security of her private information but failed to do so, installed and used the
11
Pixel which transmitted her private information to Facebook without her knowledge,
12
consent, or authorization, and failed to disclose or omitted material facts about this data-
13
sharing in its privacy policies. (Doc. 32 at 92–94.) LifeStance was allegedly aware that
14
Strong “depended and relied upon it to keep their communications confidential,” but it still
15
disclosed her private information to Facebook. (Doc. 32 at 93.)
16
LifeStance presents two arguments to dismiss the NYGBL § 349 claim. First, the
17
law does not apply to transactions or deceptions that occurred outside New York. (Doc. 41
18
at 32.) Second, Strong “cannot plausibly show any actual injury as a result of any alleged
19
material deceptive act or omission.” (Doc. 41 at 32, 33.) Neither argument is persuasive.
20
Strong alleges she resided in New York “at all relevant times[,]” including when
21
she accessed and received healthcare services through the LifeStance website. (Doc. 32 at
22
15.) See Goshen v. Mut. Life Ins. Co. of New York, 774 N.E.2d 1190, 1195 (N.Y. 2002)
23
(holding NYGBL § 349 requires “the deception of a consumer . . . occur in New York” ).
24
LifeStance has not cited any authority that a transaction conducted between an out-of-state
25
entity and a New York resident, while that individual is in New York, is not subject to
26
NYGBL § 349.
27
LifeStance’s second argument is that Strong has not alleged a sufficient injury.
28
“Lost benefit of the bargain is a viable theory of injury under GBL § 349.” Kane, 2024 WL
- 16 -
1
1178340, at *17. Allegations that a consumer “would not have purchased” a particular
2
service are sufficient under this theory. Id. Here, Strong alleges she expected her
3
communications would remain confidential, she “never consented to the disclosure” of her
4
information, and that disclosure breached her privacy. (Doc. 32 at 64-65.) Although a close
5
call, construed in the light most favorable to Strong, those allegations plausibly establish
6
Strong would not have used LifeStance’s website if she had been aware her information
7
would be disclosed. Thus, Strong has alleged she lost the benefit of the bargain and her
8
NYGBL claim may proceed.
9
VII.
Privacy Claims
10
A. California Confidentiality of Medical Information Act (“CMIA”)
11
LifeStance argues plaintiffs have not adequately alleged a CMIA claim because the
12
private information LifeStance shared with Meta was not “medical information” and it did
13
not violate the CMIA for LifeStance to share information with Meta “to help [LifeStance]
14
analyze data.” (See Doc. 41 at 33–35.) LifeStance is incorrect.
15
Under the CMIA, “medical information” is “any individually identifiable
16
information,12 in electronic or physical form, in possession of or derived from a provider
17
of health care, health care service plan, pharmaceutical company, or contractor regarding
18
a patient’s medical history, mental health application information, mental or physical
19
condition, or treatment.” Cal. Civ. Code. § 56.05(i).13 LifeStance argues plaintiffs “do not
20
allege the disclosure of substantive information regarding medical treatment, condition, or
21
history in anything more than conclusory fashion, and their own factual allegations
22
12
23
24
25
26
27
28
“‘Individually identifiable’ means that the medical information includes or contains any
element of personal identifying information sufficient to allow identification of the
individual, such as the patient's name, address, electronic mail address, telephone number,
or social security number, or other information that, alone or in combination with other
publicly available information, reveals the identity of the individual.” Cal. Civ. Code.
§ 56.05(j).
13
LifeStance argues the CMIA only applied to mental health care after January 1, 2023.
(Doc. 41 at 36.) It relies on California Assembly Bill 2089, which added “mental health
application information” to the definition of “medical information” in the CMIA. (Doc. 41
at 36.) Plaintiffs respond by citing Cal. Civ. Code. § 56.05, which defined medical
information as including “a patient’s medical history, mental or physical condition, or
treatment,” (Doc. 47 at 37), and applied during the entirety of the conduct alleged here.
Because Cal. Civ. Code. § 56.05 included mental conditions and treatment before any
amendments and LifeStance cites no cases to the contrary, its argument fails.
- 17 -
1
demonstrate that any disclosures do not amount to medical information under [the] CMIA.”
2
(Doc. 41 at 34.) LifeStance acknowledges that plaintiffs allege disclosure of patients
3
joining a waiting room to meet with a provider, patients clicking to select which state they
4
are in during their appointment, patients’ searches for therapists, patients’ calls to
5
therapists, and patients “access[ing] and review[ing] conditions treated by LifeStance[.]”
6
But LifeStance argues the CMIA only protects “substantive information regarding a
7
patient’s medical condition or history.” (Doc. 41 at 34.)
8
LifeStance cites three cases to support its contention that what it shared with Meta
9
was not medical information. See Cousin v. Sharp Healthcare, 681 F. Supp. 3d 1117, 1124
10
(S.D. Cal. 2023); Wilson v. Rater8, LLC, 20-cv-1515-DMS-LL, 2021 WL 4865930, at *4–
11
5 (S.D. Cal. 2021); Eisenhower Medical Center v. Superior Court, 226 Cal. App. 4th 430,
12
435 (2014). These cases do not support LifeStance’s argument.
13
In Cousin, which also concerned the Pixel, the court initially determined plaintiffs’
14
medical information disclosure allegations were “conclusory and devoid of any factual
15
support.” 681 F. Supp. 3d at 1123. The medical information plaintiffs alleged to have been
16
shared was their “browsing activity” of researching doctors, looking for providers, and
17
searching for medical specialists. Id. at 1124. The court held that was not protected health
18
information and dismissed plaintiffs’ CMIA claim. Id. at 1124. But the court later reversed
19
course based on additional allegations, including that defendants shared plaintiffs’ searches
20
for “their particular medical conditions” and their use of “[d]efendant’s website [to search]
21
for doctors who specialized in these conditions and for information about their conditions.”
22
See Cousin v. Sharp Healthcare, 702 F. Supp. 3d 967, 972–73 (S.D. Cal. 2023). Based on
23
the additional allegations, the court denied defendants’ motion to dismiss. Id. Plaintiffs
24
alleged far more here than the court initially dismissed in Cousins. Among other
25
allegations, plaintiffs have plausibly pleaded that LifeStance shared their “medical
26
information”—like “the type of medical treatments [they] sought,” and their “medical
27
conditions”—with Facebook along with the fact that they were waiting for specific
28
providers in an online room (and therefore presumably a patient of a LifeStance mental
- 18 -
1
health provider). (Doc. 47 at 34.)
2
In Wilson, the plaintiff alleged the defendant disclosed his “name, cellular telephone
3
number, treating physician names, medical treatment appointment information, and
4
medical treatment discharge dates and times” which the court determined was not “medical
5
information.” 2021 WL 4865930, at *5. Here too, however, plaintiffs have alleged far more
6
personal medical information than that in Wilson, including the types of treatment sought
7
for specific mental health complaints. (See Doc. 47 at 34.) Similarly, in Eisenhower,
8
plaintiffs had only alleged the information disclosed was their “name, medical record
9
number [ ], age, date of birth, and last four digits of the person’s Social Security number.”
10
226 Cal. App. 4th at 166. The court found this was not “medical information” but
11
recognized that “medical history, mental or physical condition, or treatment of the
12
individual” is “medical information.” Id. at 170. That is the type of information plaintiffs
13
have alleged was disclosed here. LifeStance’s argument that it did not share “medical
14
information” with Facebook fails.
15
LifeStance also argues the “CMIA expressly allows health-care providers to rely
16
upon third parties, like Meta, to help analyze data” like that alleged here. (Doc. 41 at 35.)
17
It cites to section 56.10(c) of the CMIA which allows medical information to be disclosed
18
“to a person or entity that provides billing, claims management, medical data processing,
19
or other administrative services for providers of health care.” (Doc. 41 at 36.) But plaintiffs
20
have alleged LifeStance shares their medical information “for purely commercial ends, i.e.
21
marketing and advertising by LifeStance, Meta, and other unauthorized third parties.” (See
22
Doc. 47 at 36.) Meta cannot plausibly be compared to a provider of “administrative
23
services” like a billing company. Plaintiffs’ CMIA claim may proceed.
24
B. Invasion of Privacy – Intrusion Upon Seclusion
25
Plaintiffs allege an Arizona common law claim for intrusion upon seclusion.
26
According to plaintiffs, LifeStance violated their privacy by disclosing their sensitive
27
medical and personally identifiable information to third parties without their consent. (Doc.
28
32 at 95.) They contend that this information was intended solely for LifeStance and was
- 19 -
1
to remain confidential, asserting its unauthorized disclosure “is highly offensive to the
2
reasonable person.” (Doc. 32 at 95.) Plaintiffs believe they had a reasonable expectation of
3
privacy based on LifeStance’s privacy policy, which assured them of confidentiality and
4
protection against unauthorized disclosures to third parties. (Doc. 32 at 95.)
5
Arizona follows the Second Restatement’s definition of intrusion upon seclusion.
6
Under that definition, one who “intentionally intrudes, physically or otherwise, upon the
7
solitude or seclusion of another or his private affairs or concerns, is subject to liability to
8
the other for invasion of his privacy, if the intrusion would be highly offensive to a
9
reasonable person.” Hart v. Seven Resorts Inc., 947 P.2d 846, 853 (Ariz. Ct. App. 1997)
10
(quoting Restatement (Second) of Torts § 652B). LifeStance argues plaintiffs “cannot
11
allege that there was an ‘intentional intrusion’ on the part of Lifestance” because it “had a
12
right to know [plaintiffs’] private information because [plaintiffs] allege that they
13
voluntarily disclosed that information and communicated it directly to LifeStance.” (Doc.
14
41 at 37.) LifeStance is correct.
15
As LifeStance points out, another case from this court discussed a similar situation.
16
In Bruer v. Phillips Law Group PC, the plaintiff claimed invasion of privacy based on
17
information that she had given to the defendant and which the defendant later sent back to
18
her. No. CV-18-01843-PHX-JJT, 2019 WL 2552060, at *1 (D. Ariz. June 20, 2019). She
19
complained that the file contained sensitive personal information that the defendant sent to
20
her without “applying required redactions” or including “password protection” on the file.
21
Id. The court dismissed the intrusion-upon-seclusion claim because the defendants
22
obtained the plaintiff’s “information [with her] permission” so she “[did] not plausibly
23
allege[ ] an invasion of privacy.” Id. at *3.
24
Here, there is no dispute that the plaintiffs voluntarily gave LifeStance their personal
25
information. Plaintiffs cite a California Pixel case which allowed an intrusion-upon-
26
seclusion case to move forward, but the plaintiffs in that case were suing Meta because
27
they had not voluntarily given their information to it. In re Meta Pixel Healthcare Litig.,
28
647 F. Supp. 3d at 778. Here, plaintiffs are suing LifeStance, to whom they did voluntarily
- 20 -
1
give their information. Plaintiffs’ intrusion-upon-seclusion claim is dismissed without
2
leave to amend.
3 VIII.
Conclusion
4
Plaintiffs’ intrusion-upon-seclusion claim is dismissed without leave to amend but
5
all their other claims may proceed. Because of the age of this case, the parties must
6
immediately prepare and prepare their Rule 26(f) report. In discussing case management
7
dates, the parties must set the deadline for dispositive motions no later than April 2026.
8
Accordingly,
9
IT IS ORDERED the Motion to Dismiss (Doc. 41) is GRANTED IN PART and
10
DENIED IN PART.
11
IT IS FURTHER ORDERED as follows:
12
The parties are directed to meet, confer, and develop a Rule 26(f) Joint Case
13
Management Report, which must be filed within 2 weeks of the date of this order. It is
14
the responsibility of plaintiff(s) to initiate the Rule 26(f) meeting and prepare the Joint Case
15
Management Report. Defendant(s) shall promptly and cooperatively participate in the Rule
16
26(f) meeting and assist in preparation of the Joint Case Management Report.
17
18
19
The Joint Case Management Report shall contain the following information in
separately-numbered paragraphs.
1.
20
21
the Joint Case Management Report;
2.
22
23
The parties who attended the Rule 26(f) meeting and assisted in developing
A list of all parties in the case, including any parent corporations or entities
(for recusal purposes);
3.
Any parties that have not been served and an explanation of why they have
24
not been served, and any parties that have been served but have not answered
25
or otherwise appeared;
26
4.
27
28
A statement of whether any party expects to add additional parties to the case
or otherwise amend pleadings;
5.
The names of any parties not subject to the Court’s personal (or in rem)
- 21 -
1
2
jurisdiction;
6.
A description of the basis for the Court’s subject matter jurisdiction, citing
3
specific jurisdictional statutes. If jurisdiction is based on diversity of
4
citizenship, the report shall include a statement of the citizenship of every
5
party and a description of the amount in dispute. See 28 U.S.C. §1332;
6
7.
7
8
including a description of each claim, defense, and affirmative defense;
8.
9
10
A short statement of the nature of the case (no more than three pages),
A listing of contemplated motions and a statement of the issues to be decided
by those motions;
9.
Whether the case is suitable for reassignment to a United States Magistrate
11
Judge for all purposes or suitable for referral to a United States Magistrate
12
Judge for a settlement conference;
13
10.
The status of any related cases pending before this or other courts;
14
11.
A discussion of any issues relating to preservation, disclosure, or discovery
15
of electronically stored information (“ESI”), including the parties’
16
preservation of ESI and the form or forms in which it will be produced;
17
12.
A discussion of any issues relating to claims of privilege or work product;
18
13.
A discussion of necessary discovery, which should take into account the
19
December 1, 2015 amendments to Rule 26(b)(1) and should include:
20
a.
21
22
and why it is proportional to the needs of the case;
b.
23
24
The extent, nature, and location of discovery anticipated by the parties
Suggested changes, if any, to the discovery limitations imposed by the
Federal Rules of Civil Procedure;
c.
The number of hours permitted for each deposition. The parties also
25
should consider whether a total number of deposition hours should be
26
set in the case, such as twenty total hours for plaintiffs and twenty
27
total hours for defendants. Such overall time limits have the advantage
28
of providing an incentive for each side to be as efficient as possible in
- 22 -
1
each deposition, while also allowing parties to allocate time among
2
witnesses depending on the importance and complexity of subjects to
3
be covered with the witnesses;
4
14.
Proposed deadlines for each of the following events. In proposing deadlines,
5
the parties should keep in mind the Case Management Order will contain
6
deadlines to govern this case and once the dates have been set the Court will
7
vary them only upon a showing of good cause. A request by counsel for
8
extension of discovery deadlines in any case that has been pending more than
9
two years must be accompanied by a certification stating the client is aware
10
of and approves of the requested extension. The Court does not consider
11
settlement talks or the scheduling of mediations to constitute good cause for
12
an extension. The parties must propose the following:
13
a.
A deadline for the completion of fact discovery, which will also be
14
the deadline for pretrial disclosures pursuant to Rule 26(a)(3). This
15
deadline is the date by which all fact discovery must be completed.
16
Discovery requests must be served and depositions noticed
17
sufficiently in advance of this date to ensure reasonable completion
18
by the deadline, including time to resolve discovery disputes. Absent
19
extraordinary circumstances, the Court will not entertain discovery
20
disputes after this deadline;
21
b.
22
Dates for full and complete expert disclosures and rebuttal expert
disclosures, if any;
23
c.
A deadline for completion of all expert depositions;
24
d.
A date by which any Rule 35 physical or mental examination will be
25
noticed if such an examination is required by any issues in the case;
26
e.
A deadline for filing dispositive motions;
27
f.
Case-specific deadlines and dates, such as the deadline to file a motion
28
for class certification or a date on which the parties are available for a
- 23 -
1
Markman (patent claim construction) hearing;
2
g.
3
A date by which the parties shall have engaged in face-to-face good
faith settlement talks;
4
h.
Whether a jury trial has been requested and whether the request for a
5
jury trial is contested, setting forth the reasons if the request is
6
contested;
7
i.
Any other matters that will aid the Court and parties in resolving this
8
case in a just, speedy, and inexpensive manner as required by Federal
9
Rule of Civil Procedure 1;
10
15.
A statement indicating whether the parties would prefer that the Court hold
11
a case management conference before issuing a scheduling order—and, if so,
12
an explanation of why the conference would be helpful.
13
IT IS FURTHER ORDERED the parties shall file a proposed Case Management
14
Order containing all the proposed dates at the same time they file the Rule 26(f) Case
15
Management Report. The proposed Case Management Order must also be emailed in Word
16
format to Lanham_chambers@azd.uscourts.gov.
17
Dated this 27th day of January, 2025.
18
19
20
21
22
23
24
25
26
27
28
- 24 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?