California Lawyers Association E-Briefs, News and Notes
July 28, 2025
In late May, Judge James Donato of the U.S. District Court for the Northern District of California ruled on summary judgment motions filed by Meta and Flo Health Inc.—both defendants in the ongoing Frasco v. Flo Health, Inc. litigation. See Frasco v. Flo Health, Inc., No. 21-CV-00757-JD, 2025 WL 1476905, at *3 (N.D. Cal. May 22, 2025). The lawsuit stems from 2021, when Erica Frasco filed the putative class action, alleging that a cell phone application referred to as the Flo App surreptitiously transmitted users’ highly personal information about menstruation, ovulation, and pregnancy goals to Google and Meta through their integration of software-development kits into the app. Just before ruling on the summary judgment motions, Judge Donato had granted in main part the motion for class certification filed by 8 named plaintiffs, including both a nationwide class (“All Flo App users in the United States who entered menstruation and/or pregnancy information into the Flo Health App between November 1, 2016, and February 28, 2019, inclusive.”) and a California subclass (“All Flo App users in California who entered menstruation and/or pregnancy information into the Flo Health App while residing in California between November 1, 2016, and February 28, 2019, inclusive.”). See Frasco v. Flo Health, Inc., No. 21-CV-00757-JD, 2025 WL 1433825, at *20 (N.D. Cal. May 19, 2025) (“CC Order”).
Judge Donato analyzed Meta’s and Flo Health Inc.’s motions separately. With respect to Meta, the court granted summary judgment on the claim under the Wiretap Act, 18 U.S.C. § 2511, reasoning that there is no liability if one party gives prior consent and that “the undisputed record shows that Flo consented to Meta’s data collection practices.” The court also granted summary judgment on claims under the California Comprehensive Computer Data Access and Fraud Act (CDAFA), Cal. Pen. Code § 502 and “on individual named plaintiffs’ claim that Meta aided and abetted Flo’s intrusion upon seclusion.” Concerning the former, the court reasoned that the expert plaintiffs relied upon for the claim had been excluded from testifying at trial under FRCP 702, and certification had been denied as well in the CC Order. With respect to the latter, the court pointed to a prior summary judgment order that granted Google’s motion on “a very similar aiding-and-abetting claim,” reasoning that “Plaintiffs’ evidence for this claim is not materially different from the evidence” proffered there. In the Google summary judgment order, the court had reasoned that aiding and abetting under California law “requires a defendant to reach a conscious decision to participate in a tortious activity” and that “Plaintiffs did not identify ‘with reasonable particularity’ a non-speculative basis in the record from which a jury could conclude that Google had the requisite knowledge.” Frasco v. Flo Health, Inc., No. 21-CV-00757-JD, 2024 WL 4280933, at *3 (N.D. Cal. Sept. 23, 2024). Without any analysis, the court also granted summary judgment on plaintiffs’ UCL claim.
Despite this, Meta was unable to completely bow out of the lawsuit as the court denied summary judgment on the claims under the California Invasion of Privacy Act (CIPA), Cal. Pen. Code §§ 631-32. The court reasoned, “Disputes of fact abound with respect to the scope of consent, the timing of Meta’s ‘interception’ or ‘eavesdropping,’ whether Meta ‘intended’ to intercept communications, whether Meta’s interception occurred while the communications were ‘in transit,’ and the like.” The court also noted that class certification had been granted for the § 632 claim but was denied for the § 631 claim in the CC Order, thus meaning that only “the § 632 claim will proceed on a classwide basis for the California subclass while the § 631 claim will proceed solely for [three individual plaintiffs.”
The court was less receptive to Flo’s motion for summary judgment, granting it only with respect to the named plaintiffs’ implied contract and UCL claims, “unjust enrichment claim to the extent it is asserted as an independent cause of action, as it overlaps with plaintiffs’ other substantive claims” and claims asserted by a plaintiff who did not start using the Flo App until after the class period. The court denied summary judgment on arguments that “all claims are time barred,” reasoning that there were “fact issues about the applicability of the fraudulent concealment doctrine” and that it would be for the jury to determine if “Flo’s privacy disclosures sufficed to give users constructive notice of the alleged misconduct.” The court also denied Flo’s request to enforce the class waiver in its terms of use, pointing to the CC Order where Judge Donato provided a thorough analysis as to why “the waiver is unconscionable on procedural and substantive grounds for many of the same reasons as those given in [Discover Bank v. Superior Ct., 36 Cal. 4th 148 (2005)] and the California cases that followed.” CC Order at 11.
Along with denying the motion in other regards, the bulk of the court’s analysis set forth the reasons plaintiffs’ claim under the Confidentiality of Medical Information Act (CMIA), Cal. Civ. Code §§ 56 et seq., was allowed to proceed. Flo had argued that it is not a “Provider of health care” and that the “CMIA did not apply to pregnancy and fertility tracker apps like Flo from 2016 through 2019.” The court rejected this, reasoning that “Flo ignores the plain text of both § 56.05(j) and § 56.06(b).” Again, pointing to the CC Order, Judge Donato found numerous “fact disputes about Flo’s services and practices” which precluded summary judgment. Quoting Cal. Civ. Code § 56.05(j), the court also found Flo’s argument that because the data was “de-identified,” it was not “medical information” unavailing. There, the court held that a reasonable jury could find that some transmitted information “include[d] or contain[ed] any element of personal identifying information sufficient to allow identification of the individual.” Accordingly, the CMIA claim will proceed to trial on a classwide basis.
While a sparse opinion, Judge Donato’s ruling provides insight into how the CMIA can apply to medical-based apps. Moreover, the CC Order is an important example of plaintiffs eluding the confines of class action waivers.
The jury trial started on July 21, 2025. See ECF No. 632.
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This article was originally published in the California Lawyers Association E-Briefs, News and Notes: July 2025
