Citations
- 238 F. Supp. 3d 1204
Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS (Doc. 116)
JOSEPHINE L. STATON, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Before the Court is a Motion to Dismiss filed by Defendants VIZIO Inc., VIZIO Holdings, Inc., VIZIO Inscape Technologies, LLC, and VIZIO Inscape Services, LLC (collectively, “Vizio”). (Mot., Doc. 116.) Plaintiffs Dieisha Hodges, Rory Zufo-lo, William DeLaurentis, John Walsh, Chris Rizzitello, and Linda Thomson filed an Opposition, and Defendants replied. (Opp’n, Doc. 121; Reply, Doc. 123.) For the following reasons, the Court GRANTS IN PART and DENIES IN PART Defendants’ Motion to Dismiss.
II. BACKGROUND
Vizio is the second-largest manufacturer of “Smart TVs,” cutting-edge televisions equipped with integrated software that enables consumers to access the Internet and on-demand services such as Netflix, Hulu, and Pandora. (Compl. ¶¶ 33, 35, 45, Doc. 108.) Known as the “Vizio Internet Apps,” “Internet Apps Plus,” and “SmartCast,” Vizio’s content delivery software comes either preinstalled on its Smart TVs or is installed through software updates. (Id. ¶45.) Vizio markets its Smart TVs as a “passport to a world of entertainment, movies, TV shows and more” and charges a premium for them because they are designed to seamlessly deliver on-demand video content to consumers. (Id. ¶¶ 34, 81.)
Plaintiffs allege that, unbeknownst to them, Vizio’s Smart TVs use automatic content recognition software to collect and report consumers’ content viewing histories. (Id. ¶¶ 39, 50, 127.) This software, called “Smart Interactivity,” collects up to 100 billion content “viewing data points” along with detailed information about a consumer’s digital identity, such as consumers’ IP addresses, zip codes, MAC addresses, product model numbers, hardware and software versions, chipset IDs, region and language settings, as well as similar information about other devices connected to the same network. (Id. ¶¶ 39, 42, 54, 62.) The Smart Interactivity software transmits this information to Vizio’s Inscape data services platform, which identifies the content a consumer has been watching by comparing the “viewing data points” to a database of existing content. (Id. ¶¶50, 62.) Vizio then sells all of this information to advertisers and media content providers so. that they can deliver highly targeted advertisements to Vizio Smart TVs, and any smartphones, tablets, or computers connected to the same network. (Id. ¶¶ 2, 5, 35, 41-42.) .
Plaintiffs contend that the constellation of information Vizio shares about consumers’ digital identities “provides a ‘game plan’ to associate individuals with their viewing habits.” (Id. ¶72.) One digital identifier that Vizio discloses, a MAC address, is a unique 12-digit identifier assigned to every mobile device, computer, Smart TV, or other electronic device. (Id. ¶ 69.) Because a MAC address is tied to a device’s embedded chipsets, the identifier remains unchanged throughout the life of the electronic device. (Id,) MAC addresses, Plaintiffs allege, are frequently linked to an individual’s name and can be used to acquire highly specific geolocation data. (Id. ¶¶ 70-71.) And, even if a MAC address alone is insufficient to identify a person, the information can readily identify a person when combined with the other information that Vizio discloses, such as IP addresses, zip codes, product model numbers, hardware and software versions, chipset IDs, and region and language settings. (Id. ¶¶ 72-79.) To support their argument, Plaintiffs provide two case studies where researchers were able to identify a significant percentage of individuals by analyzing several details about them. (Id. ¶¶ 74-78.) Plaintiffs also point to a Vizio prospectus, which highlights how the In-scape data services platform is able to “provide[ ] highly specific viewing behavior data on a massive scale with great accuracy.” (Id. ¶ 62.)
Vizio’s data collection and dissemination practices, Plaintiffs contend, are not adequately disclosed in its marketing or privacy policies. (Id. ¶¶22, 81-94, 105.) The packaging for its Smart TVs highlights Vizio’s Internet Apps and Internet Apps Plus without mentioning that, if consumers use these features, Vizio’s Smart Interactivity software will collect and disseminate information about their viewing history and digital identity. (Id. ¶¶ 81-85.) Nowhere during the setup process for a Vizio Smart TV does Vizio reference its Smart Interactivity software. (Id. ¶85.) Vizio’s Privacy Policy, which consumers can view in very small font under the “Reset & Admin” submenu, assuages consumers that it collects only “non-personal” and “anonymous” information and does not reveal that Vizio sells the information it collects to third parties. (Id. ¶¶86, 89-91.)
Contrary to the industry’s standard practice, Vizio’s Smart TVs come with Smart Interactivity automatically enabled. (Id. ¶¶ 6, 61.) To turn off Smart Interactivity, consumers must navigate through the Smart TV’s menu to an obscure settings option that does not describe what Smart Interactivity does. (Id. ¶¶ 7, 86.) If a Smart TV is reset to its factory default settings— either intentionally or inadvertently—the Smart Interactivity software reactivates without consumers receiving any notice. (Id. ¶ 66.) A 2016 report by the security software company Avast found that the “off’ capability for Smart Interactivity was not functional “for months, if not years.” (Id. ¶¶7, 66.) So, even if consumers believed they had disabled Smart Interactivity (and the feature appeared to be “off’), their Smart TVs were still transmitting their digital information without their knowledge. (Id.)
Vizio allegedly has a strong incentive to ensure that consumers do not disable its Smart Interactivity software. (Id. ¶ 44.) Vi-zio’s business model relies on the profits from its sales of consumer data to compensate for its relatively slim margins on Smart TVs. (Id. ¶¶ 43-44.) Vizio distinguishes its Inscape data services platform from competitors such as A.C. Nielson and Rentrak based on its ability to provide highly detailed information about 8 million American consumers in “real time.” (Id. ¶¶ 40, 42.) As Vizio noted in an SEC filing, if consumers objected to or opted out of its Smart Interactivity software, Vizio’s growth strategy would be jeopardized. (Id. ¶¶ 43-44.)
Plaintiffs assert they purchased Vizio Smart TVs unaware of Vizio’s data collection and dissemination practices. (Id. ¶¶ 16-21.) They provide details about their Vizio Smart TVs, such as the model numbers and cities where they purchased them, and describe how they used their Vizio Smart TVs to watch on-demand video content. (Id.) After learning about Vizio’s Smart Interactivity software, Plaintiffs disconnected their Smart TVs from the Internet or ceased watching certain on-demand video content on them. (Id.) Plaintiffs allege that, had they known about Vizio’s data collection and disclosure practices, they would not have purchased their Vizio Smart TVs or would have paid less for them. (Id.' ¶ 22.)
Based on these allegations, Plaintiffs bring various privacy and misrepresentation-based claims under both federal and state law. Plaintiffs allege federal claims under the Video Privacy Protection Act (VPPA) and the Wiretap Act. (Id. ¶¶ 111— 32.) Under state law, Plaintiffs bring common lawjfraud and negligent misrepresentation claims as well as consumer protection claims under California’s Consumers Legal Remedies Act, California’s Unfair Competition Law (“UCL”), California’s False Advertising Law, Florida’s Deceptive and Unfair Trade Practices Act, New York’s General Business Law sections 349 and 350, Massachusetts’s Chapter 93A, and Washington’s Consumer Protection Act. (Id. ¶¶ 150-241, 250-53, 263-87, 301-17.) As for their state law privacy claims, Plaintiffs allege intrusion upon seclusion claims as well as causes of action under the California Constitution, California’s Invasion of Privacy Act, the Massachusetts Privacy Act, and state video privacy statutes. (Id. ¶¶ 133-49, 242-49, 254-62, 294-300.) Finally, Plaintiffs allege common law claims for unjust enrichment. (Id. ¶¶ 288-93.)
III. LEGAL STANDARD
A defendant may move to dismiss an action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Fed, R. Civ. P. 12(b)(1). “Dismissal for lack of subject matter jurisdiction is appropriate if the complaint, considered in its entirety, on its face fails to allege facts sufficient to establish subject matter jurisdiction.” In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 984-85 (9th Cir. 2008). When considering a Rule 12(b)(1) motion, the Court “is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). “The party asserting ... subject matter jurisdiction bears the burden of proving its existence.” Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).
In deciding a motion to dismiss under Rule 12(b)(6), courts must accept as true all “well-pleaded factual allegations” in a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A court must draw all reasonable inferences in the light most favorable to the non-moving party. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). Yet, “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
“[WJhere a complaint includes allegations of fraud, Federal Rule of Civil Procedure 9(b) requires more specificity including an account of the ‘time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.’ ” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (quoting Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004)). “A pleading is sufficient under [Rjule 9(b) if it identifies the circumstances constituting fraud so that a defendant can prepare an adequate answer from the allegations.” Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir. 1989).
IV. DISCUSSION
In their Motion, Defendants contend that Plaintiffs have not suffered a concrete injury sufficient to confer Article III standing. (Mem. at 6-13.) Defendants also move to dismiss all of Plaintiffs’ claims for failure to state a claim. (Mem. at 13-38.) The Court will first examine whether Plaintiffs have Article III and statutory standing before turning to whether they have adequately pleaded their claims.
A. Article III Standing
For Plaintiffs to have Article III standing, they must (1) have suffered an “injury in fact” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical,” (2) the harm must be “fairly tracefeble]” to the defendants’ conduct, and (3) the Court must be able to redress the claimed injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). At each stage of a suit, the elements of Article III standing must “be supported in the same way as any other matter on which the plaintiff bears the burden of proof, ie., with the manner and degree of evidence required at the successive stages of the litigation.” Id. at 561, 112 S.Ct. 2130. Hence, “[a]t the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice.” Id.; Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011). Here, Defendants contest only whether Plaintiffs’ averred injuries are sufficiently concrete to confer Article III standing. (Mem. 6-13.)
“For an injury to be ‘concrete,’ it must be ‘real,’ and not ‘abstract.’ ” Rodriguez v. El Toro Med. Inv’rs Ltd. P’ship, No. SACV 16-59 (JLS) (KES), 2016 WL 6804394, at *3 Cal. Nov. 16, 2016) (quoting Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016)). But an injury need not be tangible—some injuries, though unquantifiable, are sufficiently concrete to establish Article III standing. Spokeo, 136 S.Ct. at 1549; Rodriguez, 2016 WL 6804394, at *3. In determining whether an intangible injury satisfies Article Ill’s case-or-controversy requirement, “both history and the judgment of Congress play important roles.” Spokeo, 136 S.Ct. at 1549. Although its discretion is not absolute, Congress may properly “elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.” Id. (quoting Lujan, 504 U.S. at 578, 112 S.Ct. 2130).
i. The Video Privacy Protection Act and Wiretap Act Claims
1. The Common Law History of the Right to Privacy
Plaintiffs’ federal claims under the Wiretap Act bear a “close relationship” to the tort of invasion of privacy. See Spokeo, 136 S.Ct. at 1549. The invasion of person’s privacy was first identified as an independent “legal injuria” in Samuel D. Warren and future-Justice Louis Brandeis’s seminal article The Right to Privacy. See Samuel D. Warren & Louis D. Brandéis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890); William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 384-85 (1960). Warren and Brandéis argued that certain lines of cases, although ostensibly sounding in intellectual property, contract, or fiduciary obligations are fundamentally irreconcilable with principles of those areas of the law and instead suggest a broader right “of the individual to be let alone.” See Warren & Brandeis, supra, at 197-213. A natural development of the common law, Warren and Brandéis asserted, would be the recognition of a separate tort for invasion of privacy. Id. at 213-14. After some initial judicial trepidation, see, e.g., Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (1902), the tort quickly gained currency, such that the American Law Institute incorporated it in the First Restatement. See Restatement (First) of Torts § 867 (1939). As articulated in the First Restatement, an invasion of privacy is an “unreasonabl[e] and serious[ ] interference] with another’s interest in not having his affairs known to others or his likeness exhibited to the public .... ” Id.
Seventy years after the publication of Warren and Brandeis’s original article, William Prosser added clarity to the field by identifying four distinct torts that fell under the general term “invasion of privacy”: intrusion upon seclusion, public disclosure of private facts, false light, and appropriation of a person’s name or likeness. See Prosser, supra, at 389-407. Of particular relevance here, Prosser found that intrusion upon seclusion covered a broad range of “offensive or objectionable” meddling, such as eavesdropping, harassing someone through incessant telephone calls, and prying into a person’s private records. See id. at 389-91.
The Second Restatement adopted Prosser’s interpretation of intrusion upon seclusion, defining the tort as the intentional intrusion “upon the solitude or seclusion of another or his private affairs or concerns ... if the intrusion would be highly offensive to a reasonable person.” Restatement (Second), of Torts § 652B (1977). Like Prosser, the Second Restatement identified as examples of actionable conduct eavesdropping (“with or without .mechanical aids”), examining, a person’s private correspondence or records without consent, and making repeated telephone calls. See id. at cmts. b, c. While the modern contours of the tort of intrusion upon seclusion—and invasion of privacy more broadly—may not encompass the kind of detailed collection of- a consumer’s content viewing history alleged here, the close similarity between the conduct proscribed under the Wiretap Act and the tort of intrusion upon seclusion confirms the concreteness of Plaintiffs’ injury.
Plaintiffs’ VPPA claims are even more deeply rooted in the common law. Warren and Brandéis traced the development of the tort of invasion of privacy in part to cases involving the disclosure of information in breach of a confidential relationship. See Warren & Brandeis, supra, at 207-11; Prosser, supra, at 389-407 (observing that there must be “some breach of contract, trust or confidential relation” for a- disclosure of information to a limited group of people to be tortious). Here, like in many other circumstances, the duty of confidentiality is imposed by statute. See In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 274 (3d Cir. 2016); see also, e.g., 5 U.S.C. § 552a(g)(l) (Privacy Act); 12 U.S.C. § 3417(a) (Right to Financial Privacy Act); 18 U.S.C. § 2724(a) (Driver’s Privacy Protection Act of 1994).
2. Congress’s Judgment
Besides the close relationship between Plaintiffs’ federal causes of action and well-established torts, Congress has determined that the interception of a person’s electronic communications and the unauthorized disclosure of a person’s video viewing history are sufficiently harmful to warrant private causes of action. “[Because Congress is well positioned to identify intangible harms that meet minimum Article III requirements,” its conclusion is “instructive and important.” Spokeo, Inc., 136 S.Ct. at 1549. Defendants counter that the information they disclose is not personally identifiable, so Congress’s creation of a private right of action for violations of the VPPA does not support Plaintiffs’ claim of standing, (Reply at 3 n.l.) But this argument improperly conflates the merits of Plaintiffs’ claims with their standing to bring suit. Taken to its logical conclusion, Defendants’ argument absurdly implies that a court could never enter judgment against a plaintiff on a VPPA claim if it found that the disclosed information was not within the statutory definition of personally identifiable information; instead, it would have to remand or dismiss the action for lack of jurisdiction. Cf. Thornhill Pub. Co. v. Gen. Tel. & Elees. Corp., 594 F.2d 730, 734 (9th' Cir. 1979) (“[W]hen a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiffs’ substantive claim for relief, a motion to dismiss for lack of subject matter jurisdiction rather than for failure to state a claim is proper only when the allegations of the complaint are frivolous”).
In sum, both history and Congress’s judgment demonstrate that Plaintiffs’ claimed injuries are sufficiently concrete for Plaintiffs to have standing to bring suit under the Video Privacy Protection Act and Wiretap Act.
ii.State Law Privacy Claims
For similar reasons, Plaintiffs have Article III standing to pursue their state law claims for invasion of privacy and intrusion upon seclusion. See Opperman v. Path, Inc., 87 F.Supp.3d 1018, 1057 (N.D. Cal. 2014) (“It is beyond meaningful dispute that a plaintiff alleging invasion of privacy as Plaintiffs do here presents a dispute the Court is permitted to adjudicate.”); 13A Charles Alan Wright & Arthur R. Miller et al., Federal Practice & Procedure § 3531.4 (3d ed. 2017). As noted earlier, the tort of invasion of privacy has been firmly established in the American common law for approximately a century. Regardless of whether the alleged conduct ultimately states a claim, “the events that the complaint describes are concrete, particularized, and actual as to the plaintiffs.” In re Google Inc. Cookie Placement Consumer Privacy Litig., 806 F.3d 125, 134-35 (3d Cir. 2015).
iii.Consumer Protection Claims
As for their state consumer protection claims, Plaintiffs’ allege that they “would not have purchased, or would have paid less for, their Vizio Smart TVs had Defendants not concealed their collection and disclosure of Plaintiffs’ personal information. (Compl. ¶¶ 14, 22, 180, 188, 192, 200, 212, 214, 219, 225, 235, 237, 273, 278, 286.) Such “palpable economic injuries have long been recognized as sufficient to lay the basis for standing.” Sierra Club v. Morton, 405 U.S. 727, 733, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Indeed, in Hinojos v. Kohl’s Corp., the Ninth Circuit found “no difficulty” in concluding that the plaintiffs had Article III standing based on their assertion that they “paid more for [a product] than they otherwise would have paid, or bought it when they otherwise would not have done so.” 718 F.3d 1098, 1104 n.3 (9th Cir. 2013) (quoting Mazza v. Am. Honda Motor Co., 666 F.3d 581, 595 (9th Cir. 2012)). Defendants unpersuasively attempt to distinguish Hinojos by arguing that Plaintiffs do not allege that Vizio misrepresented its “product’s quality or ability to perform an intrinsic function.” (Mem. at 11 n.5.) In other words, Defendants argue that the only factors material to a consumer’s purchasing decision are whether the Smart TV performs its “television-related functions” and is not “defective” (see id.), terms that Defendants do not define. The Court cannot conclude that materiality should be so narrowly defined for the purpose of determining subject matter jurisdiction. Accordingly, Plaintiffs have Article III standing to bring their consumer protection claims.
iv.Scope of Named Plaintiffs’ Article III Standing
Defendants finally contend that Plaintiffs lack Article III standing to bring claims on behalf of consumers who purchased Smart TVs with SmartCast because Plaintiffs did not purchase Smart TVs with this software. (Mem. at 12-13; Reply at 4.) Plaintiffs respond that the products and operative facts at issue are sufficiently similar to give them standing to bring claims on behalf of purchasers of Vizio TVs with SmartCast as well. (Opp’n at 10.)
Courts have taken three broad positions on how related the product purchased by the named plaintiff and putative class members must be. Some courts find that the named plaintiff can represent only those who purchased the exact same product. See, e.g., Kisting v. Gregg Appliances, Inc., No. 16-CV-141, 2016 WL 5875007, at *5 (E.D. Wis. Oct. 7, 2016). These courts often rely heavily on language from the Supreme Court’s decision in Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). See, e.g., Kisting, 2016 WL 5875007, at *4-5; Ferrari v. Best Buy Co., No. CIV. 14-2956 MJD/FLN, 2015 WL 2242128, at *7 (D. Minn. May 12, 2015). Other courts hold that the relatedness of the putative class representative’s and proposed class members’ claims implicates only Rule 23’s adequacy and typicality requirements—not Article III standing—and accordingly reserve judgment until a class certification motion. See, e.g., Weisblum v. Prophase Labs, Inc., 88 F.Supp.3d 283, 291 (S.D.N.Y. 2015); Cardenas v. NBTY, Inc., 870 F.Supp.2d 984, 992 (E.D. Cal. 2012). Still others allow a named plaintiff to assert claims on behalf of absent class members if the products that the putative class members bought are “substantially similar” to the product the named plaintiff purchased. Coleman~ Anacleto v. Samsung Elecs. Am., Inc., No. 16-CV-02941-LHK, 2016 WL 4729302, at *10 (N.D. Cal. Sept. 12, 2016).
The first approach, which holds that a putative class member has standing to represent only those who purchased the exact same model, is irreconcilable with the Supreme Court’s decision in Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003). In Gratz, Justice Stevens argued in dissent that the University of Michigan’s treatment of race in transfer admissions differed from its treatment of race in freshmen admissions, so the class representative—who intended to submit a transfer application—lacked standing to seek an injunction on behalf of the freshmen applicants. 539 U.S. at 286-87, 123 S.Ct. 2411 (Stevens, J., dissenting). The Gratz majority acknowledged that “there is tension in our prior cases” over whether this is properly considered a question of standing or the propriety of class certification under Rule 23(a). Id. at 263, 123 S.Ct. 2411 & n.15. Either way, the class representative could represent the freshman applicants because the freshman admissions process “[did] not implicate a significantly different set of concerns.” Id. at 265, 123 S.Ct. 2411 (emphasis added).
The second approach, which characterizes the question as one solely of adequacy and typicality under Rule 23(a), is also difficult to square with Supreme Court precedent. In Blum v. Yaretsky, the Supreme Court held that nursing home patients, though having standing to represent a class of patients threatened with discharges or transfers to lower levels of care, did not have standing to represent those threatened with transfers to higher levels of care. 457 U.S. 991, 1001, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). The Supreme Court held that “the conditions under which such transfers occur are sufficiently different from” those faced by the named plaintiffs “that any judicial assessment of their procedural adequacy would be wholly gratuitous and advisory.” Id. Similarly, in Lewis, the Supreme Court held that an illiterate prisoner lacked standing to challenge other prisoners’ lack of access to courts where the other class members’ claims were unrelated to the inability to read legal materials. 518 U.S. at 358, 116 S.Ct. 2174. Specifically, the Supreme Court held that the class representative could not represent non-English speakers, prisoners in lockdown, or the inmate population at large. Id. Blum and Lewis thus treated the relatedness of a named plaintiffs claims to those of the class as implicating standing as well as the propriety of class certification. See Blum, 457 U.S. at 1001, 102 S.Ct. 2777; Lewis, 518 U.S. at 358, 116 S.Ct. 2174; Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 158-59 n.13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (evaluating the question under Rule 23(a)’s adequacy, typicality, and commonality requirements). Lewis further suggests—albeit in dicta—that, although a motion to dismiss typically addresses only a named plaintiffs individual claims, a named plaintiffs standing to seek relief on behalf of putative class members can be raised on a motion to dismiss. See Lewis, 518 U.S. at 357, 116 S.Ct. 2174.
The Court, therefore, finds that the third approach most closely accords with Blum, Lewis, and Gratz. Using the “substantially similar” standard, the overarching question is whether the plaintiffs averred injury is substantially similar to the claims of those she seeks to represent. At the motion to dismiss stage, however, the Court’s review of the scope of a named plaintiffs Article III standing is necessarily limited. Like any other question of standing resolved at the pleading stage, “general factual allegations” that raise a reasonable inference that the products are substantially similar “may suffice.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130. The Supreme Court observed as much in Lewis, stating, “[t]he general allegations of the complaint in the present case may well have sufficed to claim injury by named plaintiffs, and hence standing to demand remediation” on behalf of the various putative class members. 518 U.S. at 357, 116 S.Ct. 2174. And, by the class certification stage, this standing question becomes effectively subsumed into Rule 23(a)’s “rigorous” typicality and adequacy requirements. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011); Falcon, 457 U.S. at 158-59 n.13, 102 S.Ct. 2364.
Here, Plaintiffs allege that their Smart TVs and those with SmartCast collect and disclose the same information through Vizio’s Smart Interactivity software. (Compl. ¶¶ 55, 58.) While Plaintiffs’ Complaint includes a few paragraphs alleging additional information collected by Vizio’s SmartCast software (id. ¶¶48, 55, 57), none of Plaintiffs’ alleged injuries hinge on the collection of this additional information. Plaintiffs, therefore, have adequately alleged that Vizio’s SmartCast-en-abled Smart TVs and their Smart TVs are “sufficiently similar” for Plaintiffs to have Article III standing to represent a class encompassing purchasers of both types of televisions.
In sum, because Plaintiffs have adequately pleaded Article III standing, the Court DENIES Defendants’ Motion to Dismiss for lack of subject matter jurisdiction.
B. Statutory Standing
Unlike Article III standing, statutory standing is not a question of subject matter jurisdiction but rather an element of a plaintiffs cause of action. As such, statutory standing is properly scrutinized under Rule 12(b)(6). See Maya, 658 F.3d at 1067. In this case, Plaintiffs plausibly allege that they would not have purchased or would have paid less for their Vizio Smart TVs had Vizio properly disclosed its consumer data collection and disclosure practices. (Compl. ¶¶ 22, 161, 164-69, 180, 182-88, 192-93, 200-01, 212-15, 219, 225, 233-38, 272-74, 278, 286.) This price premium theory is cognizable under California’s ÚCL, CLRA, and FAL; Florida’s FDUTPA; and Massachusetts’s Chapter 93A. See Kwikset Corp. v. Super. Ct., 51 Cal.4th 310, 120 Cal.Rptr.3d 741, 246 P.3d 877, 881 (2011) (“[Plaintiffs who can truthfully allege they were deceived by a product’s label into spending money to purchase the product, and would not have purchased it otherwise, have ‘lost money or property within the meaning of [the UCL.]”); Smith v. Wm. Wrigley Jr. Co., 663 F.Supp.2d 1336, 1339 (S.D. Fla. 2009) (“Florida courts have allowed diminished value to serve as ‘actual damages’ recoverable in a FDUTPA claim.”); Ferreira v. Sterling Jewelers, Inc., 130 F.Supp.3d 471, 479 (D. Mass. 2015) (“Overpayment can constitute an economic loss that is cognizable under [Massachusetts’s] chapter 93A where the consumer continues to own the misrepresented product “whose value was artificially inflated by a deceptive act or practice at the time of purchase.’ ” (citation omitted)).
While the viability of a price premium theory may be less settled under New York’s General Business Law sections 349 and 350, see In re: Lenovo Adware Litigation, No. 15-MD-02624-RMW, 2016 WL 6277245, at *10-11 (N.D. Cal. Oct. 27, 2016), the case law on balance recognizes that a plaintiff has statutory standing if she paid a premium due to the defendant’s deceptive practice. In Koenig v. Boulder Brands, Inc., the district court found plaintiffs’ allegations that they paid a premium for a product based on its “fat free” label sufficient to establish statutory standing under General Business Law sections 349 and 350. 995 F.Supp.2d 274, 288 (S.D.N.Y. 2014). Citing Koenig with approval, the Second Circuit subsequently held in Orlander v. Staples, Inc. that plaintiffs have statutory standing under New York’s General Business Law sections 349 and 350 if they “paid more than they would have for the good but for the deceptive practices of the defendant-sellers.” 802 F.3d 289, 302 (2d Cir. 2015); see also Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 698 N.Y.S.2d 615, 720 N.E.2d 892, 898 & n.5 (1999). New York Plaintiff Chris Rizzitello indicates that, after purchasing his Yizio Smart TV at a Walmart in Catskill, New York, he used the Smart TV’s features to stream videos from YouTube and other content providers. (Compl. ¶ 20.) After learning about Vizio’s data collection and disclosure practices, he stopped streaming content, disconnected his Smart TV from the Internet, and, after learning how to turn off the Smart Interactivity feature, did so. (Id. ¶20.) Thus, like the other named Plaintiffs, Rizzitello plausibly alleges that, had he been informed about Vizio’s data collection and disclosure practices, he would have paid less for the Smart TV or not purchased the product at ah. (Id. ¶¶ 14, 20, 22, 235.)
Accordingly, Defendants’ Motion to Dismiss Plaintiffs’ state consumer protection claims for lack of statutory standing is DENIED.
C. Video Privacy Protection Act (VPPA) Claims
Enacted in 1988, the Video Privacy Protection Act provides that “[a] video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person .,.. ” 18 U.S.C. § 2710(b)(1) (emphasis added); see Video Privacy Protection Act of 1988, S. 2361, 100th Cong., 102 Stat. 3195 (1988). Defendants seek to dismiss Plaintiffs’ VPPA claims, arguing that they are not “video tape service provider[s],” that Plaintiffs are not “consumer[s]” as defined by the statute, and that Defendants do not disclose “personally identifiable information.” (Mem. at 12-21.)
“[W]hen [a] statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.” Lamie v. U.S. Tr., 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000)). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). A statute is not ambiguous merely because it is awkward or even ungrammatical. Lamie, 540 U.S. at 534, 124 S.Ct. 1023. By striving to interpret a statute based on its text, a court “avoid[s] the pitfalls that plague too quick a turn to the more controversial realm of legislative history.” Id. at 536, 124 S.Ct. 1023.
i. “Video Tape Service Provider”
The VPPA provides that a “ ‘video tape service provider’ means any person, engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials ...” 18 U.S.C. § 2710(a)(4). Defendants contend that they are not “engaged in the business ... of ... delivery of ... similar audio visual materials.” (Mem. at 13-16.)
The plain text of the statute provides otherwise. As an initial matter, Congress’s use of a disjunctive list (i.e., “engaged in the business ... of ... rental, sale, or delivery”) unmistakably indicates that Congress intended to cover more than just the local video rental store. Indeed, lest the word “delivery” be superfluous, a person need not be in the business of either renting or selling video content for the statute to apply. Further, Congress’s use of the phrase “similar audiovisual materials” indicates that the definition is medium-neutral; the defendant must be in the business of delivering video content, but that content need not be in a particular format. See, e.g., In re Hulu Privacy Litig., No. C 11-03764 LB, 2012 WL 3282960, at *5 (N.D. Cal. Aug. 10, 2012).
Finally, to be’ a “video tape service provider,” a defendant must be “engaged in the business ... of ... delivery of’ video content. 18 U.S.C. § 2710(a)(4) (emphasis added). When used in this context, “business” connotes “a particular field of endeavor,” i.e., a focus of the defendant’s work. See Webster’s Third New International Dictionary 302 (1981) (def. Id); see also The American Heritage Dictionary: Second College Edition 220 (1991) (defs. la, lb); 2 Oxford English Dictionary 695 (1989) (def. 14b); Webster’s New World Dictionary; Third College Edition 189 (1988) (def.. 1). Under this definition, a defendant can be “engaged in the business” of delivering video content even if other actors also take part in the delivery of the same video content. But, for the defendant to be engaged in the business of delivering video content, the defendant’s product must not only be substantially involved in the conveyance of video content to consumers but also significantly tailored to serve that purpose.
Take, for instance, a letter carrier 'who physically places a package that happens to contain a videotape into a consumer’s mailbox. No person is more obviously “delivering” a video tape to a consumer than this employee. Yet, the letter carrier could not be characterized as “engaged in the business” of delivering video content because her job responsibilities are in no way tailored to delivering packages that contain videotapes as opposed to any other package. In the same way, the developers of many other products or services that might be peripherally or passively involved in video content delivery do not fall within the statutory definition of a video tape service provider.
In keeping with this statutory definition, Plaintiffs plausibly allege that Vizio’s Internet Apps and Internet Apps Plus are designed to enable consumers to seamlessly access Netflix, Hulu, YouTube, and Amazon Instant Video content in their homes. (Compl. ¶¶ 33-34, 45-46, 81.) A reasonable inference is that Vizio enters into agreements with these content providers to enable consumers to access them programming on Vizio’s Smart TVs. (See id. ¶ 45; Opp’n at 12-13.) Vizio then advertises its Smart TVs as “a passport to a world of entertainment, movies, TV shows and more,” and charges consumers a premium for its Vizio Smart TVs specifically because these Smart TVs are designed to stream video content through Vizio’s Internet Apps and Internet Apps Plus software. (Compl. ¶¶34, 81.) Essentially, Vizio has designed its Smart TVs to perform all the same functions of—and its Smart TVs are in direct competition with—Roku’s devices (see id. at ¶ 18; Opp’n at 11); that Vizio has integrated what others sell as a separate device into its televisions makes no meaningful difference.
Vizio’s alternative construction of the statute starts with the implicit premise that there can be only one video tape service provider in any transaction, and, because the content provider (like Hulu or Netflix) does fit within the statutory definition of a video tape service provider, Vizio cannot. (See Mem. 14-16.) But such a limitation is found nowhere in the text of the statute, and Vizio’s construction fails to give the phrase “engaged in the business ... of ’ any real meaning.
Defendants also resort to parade of hor-ribles, arguing that if Vizio is considered a video tape service provider, “[cjountless products and services,” such as “shipping services, Blu-Ray players, smartphones, app stores, cable boxes, wireless routers, personal computers, video game consoles, and even cars” would also fall within the statutory definition of video tape service providers. (Mem. at 16; Reply at 5-7.) But the statute’s text once again alleviates Vi-zio’s concerns. Most of these products or services are far too peripherally or passively involved in the delivery of video content to reasonably constitute “the business” of delivering video content. By contrast, Plaintiffs allege that Vizio has developed a product intimately involved in the delivery of video content to consumers, has created a supporting ecosystem to seamlessly deliver video content to consumers (including entering into agreements with content providers such as Netflix and Hulu), and has marketed its product to consumers as a “passport” to this video content. Other textual limitations further cabin the scope of the Act: The VPPA applies only if the consumer is a “renter, purchaser, or subscriber of goods or services” from the video tape service provider. 18 U.S.C. §§ 2710(a)(1), (b). And a video tape service provider is liable only if it releases personally identifiable information without the consent of the consumer. Id. §§ 2710(a)(3), (b). Accordingly, Vizio’s policy-laden argument cannot overcome the statute’s plain meaning.
ii. “Consumer”
The VPPA defines a “consumer” as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” 18 U.S.C. § 2710(a)(1). Thus, unlike its definition of “video tape service provider,” the statute’s definition of “consumer” is somewhat narrower than the word’s ordinary meaning. Because Plaintiffs do not contend they are renters or purchasers, they must be “subscribers” for the VPPA to apply.
In Ellis v. Cartoon Network, Inc., the Eleventh Circuit held that “a person who downloads and uses a free mobile application on his smartphone to view freely available content, without more, is not a ‘subscriber’ ... under the VPPA.” 803 F.3d 1251, 1252 (11th Cir. 2015). After analyzing various definitions of “subscriber,” the Eleventh Circuit concluded that that a “ ‘subscription’ involves some type of commitment, relationship, or association (financial or otherwise) between a person and an entity.” Id. at 1256. While a “payment is not a necessary element of subscription,” it is “one factor a court should consider when determining whether an individual is a ‘subscriber’ under the VPPA.” Id. Besides payment, other factors to consider are “registration, commitment, delivery, [expressed association,] and/or access to restricted content.” Id. (citation omitted).
By contrast, in Yershov v. Gannett Satellite Information Network, Inc., the First Circuit concluded that a consumer need not make a monetary payment in return for a mobile application to be considered a “subscriber.” 820 F.3d 482, 488-89 (1st Cir. 2016). Instead, the plaintiffs provision of personal information in return for the defendant’s video content was sufficient consideration for the plaintiff to be a “subscriber.” Id. at 489. And, by downloading the defendant’s application, the plaintiff “established a relationship with [the defendant] that [was] materially different from what would have been the case had [the defendant’s publication] simply remained one of millions of sites on the web that [the plaintiff] might have accessed through a web browser.” Id.
Here, Plaintiffs are more plausibly “subscribers” than the plaintiffs in either Ellis or Yershov because they allege that they do pay for Vizio’s applications. Plaintiffs contend that Vizio charges a premium for its Smart TVs because of their ability to seamlessly deliver video content to consumers through Vizio’s Internet Apps, Internet Apps Plus, and SmartCast. (Compl. ¶¶ 22, 33.) After consumers purchase their Smart TVs, Vizio continues to service them by pushing software updates that improve security and provide additional features. {See id. ¶¶ 45, 59, 66, 92.) Thus, under either Ellis or Yershov’s holdings, Plaintiffs plausibly allege an association with Vizio that is sufficiently substantial and ongoing to constitute a subscription,
iii. “Personally Identifiable Information”
Defendants’ finally contend that they do not disclose “personally identifiable information” because “Plaintiffs have alleged ... only that Defendants have disclosed device identifying information.” (Mem. at 17-21; Reply 7-9.) For their part, Plaintiffs assert that the array of data Vizio purportedly discloses about them—including MAC addresses, IP addresses, zip codes, chipset IDs, product model numbers, hardware and software versions, region and language settings, viewing history, purchase history, and “the presence of other devices connected to [the same] network”—falls within the statutory definition of “personally identifiable information.” (Opp’n 15-18; Compl. ¶¶ 63, 72.)
By its own terms, the VPPA prohibits the disclosure of “personally identifiaWe information.” 18 U.S.C. § 2710(a)(3) (emphasis added). The suffix “able” means “capable of,” so “personally identifiable information” plainly extends beyond a consumer’s name. Webster’s Third New International Dictionary 4, 1123 (1981). Indeed, had Congress intended to limit the statute to protecting the disclosure of an individual’s name (when linked to particular video rentals), it could have easily done so and avoided the Act’s broader—and admittedly clunky—phrasing. See Yershov, 820 F.3d at 486. Turning to the VPPA’s defined terms, three of the four statutory definitions use the word “means” to restrict the defined term to the statutory definition. See 18 U.S.C. §§ 2710(a)(1), (a)(2), (a)(4). “As a rule, [a] definition which declares what a term ‘means’ ... excludes any meaning that is not stated.” Burgess v. United States, 553 U.S. 124, 130, 128 S.Ct. 1572, 170 L.Ed,2d 478 (2008) (citation omitted). But Congress chose the word “includes” instead for. the definition of “personally identifiable information.” See 18 U.S.C. § 2710(a)(3). This word “normally implies that the proffered definition falls short of capturing the whole meaning.” Yershov, 820 F.3d at 486; see, e.g., United States v. Angelilli, 660 F.2d 23, 31 (2d Cir. 1981) (“The use of the word ‘includes,’ rather than a more restrictive term such as ‘means,’ ‘indicates that the list is not exhaustive but merely illustrative,’ ” (citation omitted)). Hence, while “information which identifies a person as having [selected] a video” surely is covered, “personally identifiable information” is not restricted to such information. See 18 U.S.C. § 2710(a)(3); Yershov, 820 F.3d at 486.
The statutory structure confirms that Congress intended “personally identifiable information” to encompass more than a person’s name and'physical address. In the original Act, Congress included both an opt-out and opt-in disclosure process.- If a consumer opted in to a disclosure, a video tape service provider could reveal any type of personally identifiable information. Video Privacy Protection Act of 1988, S. 2361, 100th Cong. § 2,102 Stat. 3195 (1988). But if the consumer had to opt out of the disclosure, the video tape service provider could disclose only the consumer’s name and address. See id. Thus, Congress contemplated that the Act would protect more than just a person’s name or physical ad~ dress. Yershov v. Gannett Satellite Info. Network, Inc,, 104 F.Supp.3d 135, 140 (D. Mass. 2015), rav’d in part on other grounds, 820 F.3d 482 (1st Cir. 2016).
Based on many of these textual clues, the First Circuit in Yershov concluded that “personally identifiable information” extends beyond a person’s name to embrace “information reasonably and foreseeably likely to reveal which .•.. videos [the plaintiff] has obtained.” 820 F.3d at 486. While at some point “the linkage of information to identity becomes too uncertain, or too dependent on too much yet-to-be-done, or unforeseeable detective work,” the court found the plaintiffs allegations that the defendant disclosed his phone’s GPS coordinates from the moment when he watched videos to be personally identifiable information. Id.
By contrast, the Third Circuit in In re Nickelodeon held that IP addresses do not constitute personally identifiable information under the VPPA. See 827 F.3d at 290. While recognizing that the “text itself is ,.. amenable” to a broader interpretation, the Third Circuit relied heavily on statements by Senator Patrick Leahy and Representative Robert Kastenmeier at a joint hearing to conclude that personally identifiable information covers only “the kind of information that would readily permit an ordinary person to identify a specific individual’s video-watching behavior.” Id. at 285-86,290,
The Court finds Yershov to be a more persuasive interpretation of the VPPA than In re Nickelodeon, First, Yer-shov focused foremost on the text of the statute, while In re Nickelodeon turned quickly to “the more controversial realm of legislative history.” See Lamie, 540 U.S. at 536, 124 S.Ct. 1023. Perhaps, if the statutory language were particularly indecipherable and the legislative history decisively resolved the issue, this approach might be understandable. But In re Nickelodeon recognized that “portions” of the legislative history suggested a broader interpretation of personally identifiable information and the statutory text was “amenable” to such an interpretation. 827 F.3d at 285-86. Second, In re Nickelodeon relied heavily on Congress’s decision not to amend the statute substantially in 2002. As the Supreme Court has instructed, this kind of “[p]ost-enactment legislative history (a contradiction in terms) is not a legitimate tool of statutory interpretation.” Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242, 131 S.Ct 1068, 179 L.Ed.2d 1 (2011). Indeed, Yershov examined the same Congressional inaction and reached the exact opposite conclusion about its proper meaning. See 820 F.3d at 488. Third, under the Third Circuit’s “ordinary person” test it would be highly questionable whether even social security numbers would constitute personally identifiable information because, as the Third Circuit itself recognized, this information “might not be easily matched to ... persons without consulting another entity, such as a credit reporting agency or government bureau.” In re Nickelodeon Consumer Privacy Litig., 827 F.3d at 283.
Yet, the Court need not disagree with In re Nickelodeon because Plaintiffs allege that Vizio’s Inscape platform discloses even more about their digital identities—in particular, consumers’ MAC addresses and information about other devices connected to the same network. Plaintiffs allege that MAC addresses are frequently linked to an individual’s name and can be used to acquire highly specific geolocation data. (Compl. ¶¶ 69-71.) MAC addresses allegedly can also identify a person when combined with Vizio’s disclosure of consumers’ IP addresses, zip codes, product model numbers, hardware and software versions, chipset IDs, and region and language settings. (Id. ¶¶ 72-79.) Besides collecting and disclosing extensive information regarding consumers’ Smart TVs, Vizio supposedly collects and discloses information about all other devices connected to the same network. (Id. ¶¶63, 72.) Plaintiffs have thus plausibly alleged that Vizio’s provision of—to quote its own prospectus—“highly specific viewing behavior data on a massive scale with great accuracy” amounts to the disclosure of personally. identifiable information. (Id. ¶ 62.)
The Court stresses the posture of this case: Ultimately, Plaintiffs will have to demonstrate that Vizio’s disclosures are “reasonably and foreseeably likely to reveal” what video content Plaintiffs have watched. Yershov, 820 F.3d at 486. But this is a factual inquiry ill-suited for resolution on a motion to dismiss. Yershov, 104 F.Supp.3d at 145 (observing that a “factual record would need to be developed before concluding that an Android ID is not PH”). The Court simply cannot accept Vi-zio’s offer to engage in judicial fact-finding or make sweeping determinations as a matter of law on this Motion to Dismiss. Because Plaintiffs have plausibly alleged that the array of information Vizio discloses about them is personally identifiable information, the Court must DENY Vizio’s Motion to Dismiss Plaintiffs’ VPPA claims.
D. Wiretap Act Claims
The Wiretap Act affords a private right of action to “any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter .... ” 18 U.S.C. § 2520(a). Defendants argue that Plaintiffs’ Wiretap Act claims should be dismissed because Defendants do not “intercept” any electronic communications and the messages they collect do not constitute the “contents” of an electronic communication. (Mem. at 23-27.) For the reasons elaborated below, the Court concludes that Plaintiffs have inadequately pleaded interception.
The Wiretap Act proscribes the “intentional[ ] interception] ... [of] any wire, oral, or electronic communication.” 18 U.S.C. § 2511(l)(a). In Konop v. Hawaiian Airlines, Inc., the Ninth Circuit held that, for an electronic communication “to be ‘intercepted’ in violation of the Wiretap Act, it must be acquired during' transmission, not while it is in electronic storage.” 302 F.3d 868, 878 (9th Cir. 2002). In so holding, Konop strove to distinguish between information acquired contemporaneously to its transmission and information that resides in electronic storage. Id.; see Theofel v. Farey-Jones, 359 F.3d 1066, 1077 (9th Cir. 2004) (‘We ... held in Konop v. Hawaiian Airlines, Inc. ... that the Act applies only to “acquisition contemporaneous with transmission.” (citation omitted)). Access to information maintained in electronic storage is governed by the Stored Communications Act, while the Wiretap Act regulates access to information acquired contemporaneously to its transmission. See Konop, 302 F.3d at 878.
While some language in Konop suggests that information cannot be “intercepted” within the meaning of the Wiretap Act if it is acquired simultaneously with its arrival, see id. at 879-880, the issue was not squarely presented in the case. The plaintiff in Konop alleged that his former employer used another employee’s password to access disparaging posts that the plaintiff kept on his online bulletin board. Id. at 873. Thus, the information the employer acquired had been in electronic storage for a considerable period before his employer accessed it. Like Konop, most of the decisions in this Circuit addressing the simultaneous transmission requirement involve the collection of emails or other communications that were unquestionably in electronic storage for a substantial period before the defendants collected them. See, e.g., Theofel v. Farey-Jones, 359 F.3d 1066, 1077 (9th Cir. 2004) (stored emails); NovelPoster v. Javitch Canfield Grp., 140 F.Supp.3d 938, 953 (N.D. Cal. 2014) (stored emails); see also Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457, 460 (5th Cir. 1994) (stored unread emails).
In United States v. Szymuszkiewicz, the Seventh Circuit concluded that information acquired “within a second of each message’s arrival and assembly” satisfies the contemporaneous interception requirement. 622 F.3d 701, 706 (7th Cir. 2010). In Szymuszkiewicz, the defendant inserted a command into his supervisor’s copy of Microsoft Outlook that directed a copy of all incoming messages to him. Id. at 703. The defendant argued that “he did not ‘intercept’ anything, for (at least in football) ‘interception’ means catching a thing in flight, and any message would have reached its destination ([his supervisor’s] inbox) before a copy was made for him.” Id. Judge Easterbook observed that it did not matter whether his supervisor’s computer or an intermediary diverted the information:
Several circuits have said that, to violate § 2511, an interception must be “contemporaneous” with the communication .... [The defendant] sees this as support for his “in flight” reading, but it is not. “Contemporaneous” differs from “in the middle” or any football metaphor. Either the server in Kansas City or [his supervisor’s] computer made copies of the messages for [the defendant] within a second of each message’s arrival and assembly; if both [the defendant and his supervisor] were sitting at their computers at the same time, they would have received each message with no more than an eyeblink in between. That’s contemporaneous by any standard. Even if [the supervisor’s] computer (rather than the server) was doing the duplication and forwarding, it was effectively acting as just another router, sending packets along to their destination ....
Id. at 705-06 (citations omitted). In reaching this conclusion, the Seventh Circuit cited Konop, see id. at 706, indicating that the court found its decision consistent with the Ninth Circuit’s simultaneous transmission requirement.
Szymuszkiewicz emphasized that its holding was necessary to keep modern telephonic communications within the purview of the Wiretap Act. Id. Interception of telephone calls made through modern “packet switching” technology “must be done by programming a computer to copy the contents [of packets] it sends along ....” Id. So, if interception “within a second of each message’s arrival and assembly” did not qualify as “simultaneous,” the Wiretap Act would no longer govern phone calls—the very communications Congress had in mind when it enacted the Wiretap Act. Id. at 704, 706; see In re Carrier IQ, Inc., 78 F.Supp.3d 1051, 1076-81 (N.D. Cal. 2015) (concluding that Konop’s simultaneous transmission requirement does not place packet switching technology outside the ambit of the Wiretap Act). A contrary holding would also mean that different substantive rules would apply to those engaged in the same real-time electronic conversation based on whose electronic device was bugged and who was sending or receiving the particular message in question. If, say, Person A’s device was bugged, all of the messages she sends to Person B would be subject to the Wiretap Act, while all the message she receives—even if immediately collected—would be subject to the Stored Communications Act. Nothing in the text or structure of the Wiretap Act or Stored Communications Act suggests such a hopelessly convoluted legal framework.
But, even if the Court were to accept Szymuszkiewicz’s reasoning, Plaintiffs have not articulated with sufficient clarity when Vizio supposedly intercepted their communications. Besides their con-clusory allegation that Vizio intercepted their electronic communications “during transmission” (Compl. ¶ 128.), Plaintiffs rely on a rather inscrutable graphic with no textual explanation (id. ¶ 52) and vague allegations about how Vizio’s data collection occurs “in real time” (id. ¶¶ 39, 41-42, 49, 62). While Plaintiffs need not prove their theory of interception on a motion to dismiss, Plaintiffs must provide fair notice to Defendants of when they believe Vizio intercepts their communications. A written explanation of Plaintiffs’ theory of interception is particularly important in this case because the graphic Plaintiffs include in their Complaint suggests that Vizio transmits their data to its Inscape platform significantly after the data arrive at their Smart TVs. (See id. ¶ 52.) The Court, therefore, DISMISSES with LEAVE TO AMEND Plaintiffs’ Wiretap Act claims. As Plaintiffs have inadequately pleaded interception, the Court need not address Defendants’ alternative argument that Vizio does not collect the “contents” of any electronic communications.
E. Fraud Claims
Defendants move to dismiss Plaintiffs’ fraud-based claims for failure to satisfy Rule 9(b). (Mem. at 28-33.) Plaintiffs contend that Defendants overstate Plaintiffs’ burden in alleging claims based on fraudulent omissions and that both then fraudulent omission and affirmative misrepresentation theories- are well pleaded. (Opp’n at 21-27.)
i. Fraudulent Omission-Based Claims
Under Rule 9(b), a party must plead allegations of fraud, whether through affirmative misrepresentations or omissions, “with particularity.” Fed. R. Civ. P. 9(b). To satisfy this Rule, a plaintiff must generally allege the ‘“who, what, when, where, and how’ of the misconduct charged.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009). “However, in the context of a fraudulent omission claim, a plaintiff cannot plead a specific time or place of a failure to act.” Peel v. BrooksAmerica Mortg. Corp., 788 F.Supp.2d 1149, 1160 (C.D. Cal. 2011). In such circumstances, “a plaintiff may plead fraud by alternative means.” Id. The purpose of Rule 9(b)’s heightened pleadings standard is “to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (citation omitted).
Relying on Marolda v. Symantec Corp., Defendants assert that to satisfy Rule 9(b), a fraudulent omission claim “must describe the content of the omission and where the omitted information should or could h