In re Carrier IQ, Inc. (78 F. Supp. 3d 1051, 2015)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS SECOND CONSOLIDATED AMENDED COMPLAINT

(Docket No. 304)

EDWARD M. CHEN, United States District Judge

I. INTRODUCTION

Plaintiffs in this multidistrict litigation— eighteen (18) individuals from thirteen different states — have filed a second consolidated amended complaint (“SCAC” or “Complaint”) against Defendant Carrier IQ, Inc. and a number of manufacturers of mobile devices. The Complaint alleges that Defendants have violated the Federal Wiretap Act as well as a number of state’s privacy and consumer protection statutes through the creation and use of Carrier IQ’s software on Plaintiffs’ mobile devices. Plaintiffs allege that Carrier IQ designed, and the Device Manufacturers Defendants embedded, the Carrier IQ Software on their mobile devices and, once embedded, this software surreptitiously intercepted personal data and communications and transmitted this data to Carrier IQ and its customers. Pending before the Court is Defendants’ joint motion to dismiss the SCAC in its entirety. For the reasons that follow, the Court GRANTS in part and DENIES in part Defendants’ joint motion, and will afford Plaintiffs leave to file a third consolidated amended complaint.

II. FACTUAL & PROCEDURAL BACKGROUND

A. Plaintiffs

There are 18 plaintiffs in this action, from 13 different states. Below is a chart that identifies the Plaintiff, the state in which each resided during the relevant period, and which mobile device each Plaintiff had with the Carrier IQ Software installed:

Plaintiff State Device Patrick Kenny Atizona Samsung Galaxy S 4G HTC Touch Daniel Pipkin California Samsung Galaxy SU 4G LTE Jennifer Patrick California Motorola Bravo Dao Phong California HTC EVO Ryan McKeen Comiecticut Samsung Epic Touch 4G Leron Levy Florida Samsung Moment Matthew Hiles Iowa LG Marquee Luke Szulczewski Illinois HTC EVO 4G Michael Allan Kentucky HTC EVO 4G Gary Cribbs Maryland Samsung Galaxy S2 Shawn Grisham Mississippi Samsung Epic 4G Bobby Cline Michigan LG LS670 Optimus S Mark Laning Texas Pantech P5000 Clarissa Portales Texas HTC EVO Douglas White Texas Huawei Ascend II m865 Eric Thomas Texas Samsung Replenish Brian Sandstrom Washington HTC EVO Colleen Fischer Wisconsin LG LS670 Optimus S

In describing each Plaintiff, the SCAC provides that “[u]pon information and belief, [the Plaintiffs] mobile device came with the Carrier IQ Software and implementing or porting software pre-installed. In addition to using his devices to make phone calls, [the Plaintiff] has used it for web browsing and text messaging, including accessing, inputting, and transmitting personal, private, confidential, and sensitive information. [The Plaintiff] would not have purchased his mobile device had he known that the Carrier IQ Software and related implementing or porting software was installed and operating on his device, and taxing his device’s battery, processor, and memory, as alleged herein.” See SCAC ¶¶ 8-25.

B. Defendants

The remaining defendants in this action are a number of mobile device manufacturers. Plaintiffs allege that Carrier IQ is the “designer, author, programmer, and vendor” of the IQ Agent software and provided the mobile device manufacturers the “guide or template” needed for the “related implementing or porting software known as the CIQ Interface.” Id. ¶ 26. The IQ Agent and CIQ Interface software forms the basis of Plaintiffs’ claims, as described infra.

The remaining Defendants are: (1) HTC America, Inc. and HTC Corporation (collectively “HTC”); (2) Huawei Device USA, Inc. (“Huawei”); (3) LG Electronics Mobi-leComm U.S.A., Inc. and LG Electronics, Inc. (collectively “LG”); (4) Motorola Mobility LLC (“Motorola”); (5) Pantech Wireless, Inc. (“Pantech”); (6) Samsung Telecommunications America, Inc. and Samsung Electronics Co., Ltd. (collectively “Samsung”). Each Defendant is alleged to have installed the Carrier IQ Software and CIQ Interface software on at least some of their mobile device models.

C. Asserted Causes of Action

The SCAC alleges five causes of action:

• Count 1: Violation of the Federal Wiretap Act (18 U.S.C. § 2551)

• Count 2: Violation of State Privacy Laws: Plaintiffs assert their claims on behalf of all residents of the United States under CaLPenal Code § 502 and on behalf of citizens of the following 35 states under those states’ respective privacy laws: Arizona, California, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

• Count 3: Violation of State Consumer Protection Acts: Asserted on behalf of residents of the following 21 states under those states’ respective consumer protection statutes: Arkansas, California, Connecticut, Delaware, Florida, Hawaii, Kansas, Maryland, Michigan, Missouri, Nevada, New Hampshire, New Jersey, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, Vermont, Washington, and West Virginia.

• Count 4: Violation of the Magnu-son-Moss Warranty Act (15 U.S.C. § 2301-2312): Asserted on behalf of the residents of the following 34 states (and the District of Columbia): Alaska, Arkansas, California, Colorado, Delaware, District of Columbia, Hawaii, Indiana, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming.

• Count 5: Violation of the Implied Warranty of Merchantability: asserted on behalf of residents of the states enumerated under Count 4.

D. Carrier IQ Software Background

Carrier IQ “designed, authored, programmed, and caused the installation and activation of the Carrier IQ Software, including the so-called IQ Agent, on the devices at issue in this case.” Id. ¶ 62. It also “designed, authored, and provided guides to the Device Manufacturers for designing, authoring, programming, installing, and activating the' CIQ Interface in deployments” through the “embedded” method of installation. Id.

Carrier IQ represents that its software is a “network diagnostics tool” for cell phone service providers. Id. ¶ 40. It is alleged that in reality, the software collects, and transfers, sensitive personal data off of a user’s mobile device. See id. ¶¶ 1-2. Specifically, the CIQ Interface software is alleged to be a “wrapping or porting layer of code designed to see recognize and intercept a host of data and content, including SMS text message content and URLs containing search terms, user names, and passwords ... and to send that material down to the IQ Agent further processing and possible transmittals.” Id. ¶ 63. The SCAC alleges that the Device Manufacturers “design and program” the CIQ Interface (with Carrier IQ’s aid) and then install the CIQ Interface and IQ Agent software on their mobile devices. Id. Once installed, the software “operates in the background,” such that the typical user has no idea that it is running and cannot turn it off. Id. ¶ 64. Users are never given the choice of opting into or out of the Carrier IQ Software’s functionality. Id. Because it is always running, the Plaintiffs allege that it “taxes the device’s battery power, processor functions, and system memory.” Id.

Plaintiffs allege that the data intercepted by the Carrier IQ Software includes the following: (1) URLs (including those which contain query strings with embedded information such as search terms, user names, passwords, and GPS-based geo-lo-cation information); (2) GPS-location information; (3) SMS text messages; (4) telephone numbers dialed and received; (5) the user’s keypad presses/keystrokes; and (6) application purchases and uses. Id. ¶ 65. This information is intercepted as part of the Carrier IQ Software’s “calls” on the device operating system for “metrics.” Id. It then stores the information in the mobile device’s RAM memory on a rolling basis. Id.

The Carrier IQ Software also has a feature referred to as “Profiles.” Via Profiles, Carrier IQ customers (who are typically wireless carriers, but can also include device manufacturers) will specify which data they want from the above described “metrics.” Id. ¶ 68. At designated times (or as requested), the Profile-specified data would then be transmitted from the mobile device to the requesting customer (the wireless carriers or device manufacturers). Id.

The SCAC quotes from a number of letters which the various Device Manufacturers sent to Senator Al Franken in response to his inquiries regarding the Carrier IQ Software. These letters provide a glimpse into the potential scope of the Carrier IQ Software deployment. AT & T stated that Carrier IQ’s Software was installed on approximately “900,000 devices, with about 575,000 of those collecting and reporting wireless and service performance information to AT & T.” Id. ¶ 53. Sprint indicated that there were “26 million active Sprint devices that have Carrier IQ Software Installed” and stated that Sprint queried information from a fraction of those (c. 1.3 million) at any given time for diagnostic needs and that a 30,000 device subset of this 1.3 million were used for “research specific problems.” Id. ¶ 54. T-Mobile stated that there were “approximately 450,000 T-Mobile customers [that] use devices that contain Carrier IQ’s diagnostic software.” Id. ¶ 56.

The SCAC recounts two ways where deployment of the Carrier IQ Software has resulted in “grave breaches of privacy.” Id. ¶ 69. First, due to a “programming error,” the SCAC alleges that AT & T has admitted that the “Carrier IQ Software transmitted text message content to it.” Id. Plaintiffs use this as evidence that the Carrier IQ Software does, in fact, intercept and capture text message content. Id. Second, Plaintiffs state that “with some deployments, including those on HTC mobile devices and possibly on certain other devices,” the data and content intercepted by the Carrier IQ Software was sent in unencrypted, human-readable form into the system logs of the affected devices. Id. ¶ 71. Accordingly, this information was vulnerable to anyone with access to the system logs, including to individuals with malicious intent. Id. ¶ 72. Further, because this information was contained in system logs, the private information improperly intercepted and stored was transmitted to Google (who is the author of the Android Operating System) as part of crash reports. Id. ¶ 73. Similarly, HTC has acknowledged that they have also received this private information through its “Tell HTC” tool which “draws on content stored in the device logs.” Id. Accordingly, Plaintiffs contend that this information “may have gone to application developers who draw on device logs as a means of diagnosing application crashes (or for other purposes), including via widely available software tools.” Id.

Plaintiffs allege that the Carrier IQ Software continues to operate even if the consumer is using the device solely on a Wi-Fi network (as opposed to a cellular network). Id. ¶ 74.

E. FTC Investigation of and Action Against HTC Re: Carrier IQ Software

Since the filing of the First Consolidated Amended Complaint in this action, the FTC commenced an investigation into HTC regarding the Carrier IQ Software and a “related privacy and security flaw” in HTC mobile devices. Id. ¶ 75. This investigation culminated in a Consent Order agreement in February 2013. Id. ¶ 76.

The FTC found that HTC had “failed to take reasonable steps to secure the software it developed for its smartphones and tablet computers, introducing security flaws that placed sensitive information about millions of consumers at risk.” Id. One of the failures cited, was HTC’s failure to use “documented secure communications mechanisms in implementing logging applications,” thus placing sensitive information at risk. Id. ¶ 77. Because of HTC’s failure to implement security measures, “any third-party application that could connect to the internet could communicate with the logging applications on HTC devices and access a variety of sensitive information.” Id. One of the “logging” applications noted by the FTC was the Carrier IQ Software. Relevant to this case, the Consent Order noted: The information collected by the Carrier IQ software was supposed to have been accessible only by network operators, but because HTC used an insecure communications mechanism, any third-party application on the user’s device that could connect to the internet could exploit the vulnerability to communicate with the CIQ Interface.” Id. This permitted interception of “the sensitive information being collected by the Carrier IQ software” and potentially allowed individuals to perform “malicious actions” such as “sending text messages without permission.” Id.

The FTC Consent Order explained how this security flaw occurred. During the development of its CIQ Interface, HTC activated “debug code” in the operating system to test whether the CIQ Interface was operating properly. “The debug code accomplished this by writing the information to a particular device log known as the Android system log, which could then be reviewed. However, HTC failed to deactivate the debug code before its devices shipped for sale to consumers.” Id. Thus, “all information that the CIQ Interface sent to the Carrier IQ software ... was also written to the Android system log on the device.” Id. Once in the system log, the sensitive information was then “[accessible to any third-party application with permission to read the system log” and was sent to HTC through its “Tell HTC” error reporting tool.” Id. The FTC noted the consumers had “little, if any, reason to know their information was at risk because of the vulnerabilities introduced by HTC.” Id. ¶ 78. Ultimately, the FTC found that HTC had engaged in unfair or deceptive acts or practices in violation of the Federal Trade Commission Act given deceptive statements in its user manuals and user interface. Id. ¶ 79.

III. DISCUSSION

A. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss based on the failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). A motion to dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995). In considering such a motion, a court must take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party, although “conclusory allegations of law and unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.2009). While “a complaint need not contain detailed factual allegations ... it must plead ‘enough facts to state a claim to relief that is plausible on its face.’ ” Id. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than sheer possibility that a defendant acted unlawfully.” Iqbal, 129 S.Ct. at 1949.

To the extent Plaintiffs’ claims sound in fraud, the SCAC must meet the heightened pleading standard of Federal Rule of Civil Procedure 9(b). See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir.2009). Rule 9(b) provides: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b). To satisfy Rule 9(b), the “complaint must ‘identify the who, what, when, where, and how of the misconduct charged, as well as what is false or misleading about the purportedly fraudulent statement, and why it is false.’ ” Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir.2013) (quoting Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir.2011)). This encompasses the circumstances surrounding reliance. See Kearns, 567 F.3d at 1125 (holding that the complaint did not meet the standard of Rule 9(b) partly because the plaintiff failed to specify when he was exposed to the allegedly fraudulent advertisements, which ones he found material, and on which ones he relied).

B. Plaintiffs’ Standing to Assert Their Claims

In order to have Article III standing to assert a claim, a plaintiff must have suffered an injury-in-fact that is fairly traceable to the actions of the defendant, and that his injury is likely to be redressed by a favorable decision. See, e.g., Ass’n of Public Agency Customers v. Bonneville Power Admin., 733 F.3d 939, 950 (9th Cir.2013). Further, standing is “claim- and relief-specific, such that a plaintiff must establish Article III standing for each of her claims and for each form of relief sought.” In re Adobe Systems, Inc. Privacy Litig., 66 F.Supp.3d 1197, 1218, 2014 WL 4379916, at *10 (N.D.Cal. Sept. 4, 2014); see also Daimler-Chrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (“[0]ur standing cases confirm that a plaintiff must demonstrate standing for each claim he seeks to press.”). “In a class action, standing is satisfied if at least one named plaintiff meets the requirements.” Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 865 (9th Cir.2014) (citation omitted). As discussed below, once a class is certified, standing may also be established by members of the class.

The Device Manufacturers raise a number of challenges to Plaintiffs’ standing to bring the various claims in the SCAC. Specifically, Defendants argue that: (1) Plaintiffs lack Article III standing to assert their claims under California Penal Code § 502 (and related state consumer protection statutes) as they have not alleged a sufficient injury-in-fact; (2) that Plaintiffs Cribbs and Pipkin have failed to allege any injury; and (3) that Plaintiffs lack standing to assert claims under state laws in which they do not reside and against Device Manufacturers who did not produce their mobile devices. The Court addresses each argument in turn.

1. Plaintiffs Have Adequately Alleged Standing Under Cal. Penal Code § 502 and State Consumer Protection Statutes

Defendants argue that Plaintiffs lack standing to assert a claim under the California Consumer Data Access and Fraud Act (“CCDAFA”), Cal. Penal Code § 502, or any state consumer protection statute because these statutory claims require proof that the Plaintiffs “suffer[ed] damage or loss by reason of a violation.” Cal. Penal Code § 502(e). Plaintiffs respond, however, that they have suffered damage in three ways: (1) diminished battery power and life in their mobile devices as a result of the Carrier IQ Software; (2) alleged collection and disclosure of personal information; and (3) they would not have purchased their mobile devices had they known the Carrier IQ Software was installed. Plaintiffs have sufficiently alleged “damage” for purposes of the pleading stage by alleging that the Carrier IQ Software diminished their mobile devices’ battery life and resources. Accordingly, the Court need not address Plaintiffs’ alternative theories of damage and Defendants’ motion to dismiss on this ground is DENIED.

As detailed above, the SCAC has alleged, for each Plaintiff, that the Carrier IQ Software “was installed and operating on his device, and taxing his device’s battery, processor, and memory, as alleged herein.” See SCAC ¶¶ 8-25. Defendants contend that these “generalized” allegations are “too vague and speculative” to establish Article III standing.

Defendants rely primarily on Opperman v. Path, Inc., No. C13-0453-JST, 2014 WL 1973378 (N.D.Cal. May 14, 2014), for this proposition. In that case, plaintiffs alleged that installed malware on their iDeviees resulted in “diminished mobile device resources, such as storage, battery life, and bandwidth.” Id. at *22. They alleged that the “unauthorized transmissions and operations used iDevice resources, battery life, energy and cellular time at a cost to Plaintiffs and caused loss of use and enjoyment of some portion of each iDevice’s useful life.” Id. The court found these allegations insufficient, stating that because the plaintiffs had failed to “quantify] or otherwise articulate[ ] the alleged resource usage, they fail to allege an injury that can serve as the basis of standing.” Id.

At the same time, other courts in this district have “found that unauthorized use of system resources can suffice to establish a cognizable injury” when allegations plausibly suggested a non-de minimis drain on those resources. In re Google, Inc. Privacy Policy Litigation, No. C12-01382-PSG, 2013 WL 6248499, at *7 (N.D.Cal. Dec. 3, 2013). For example, in In re iPhone Application Litigation, 844 F.Supp.2d 1040 (N.D.Cal.2012), the court found that plaintiffs had standing where they had alleged “diminished and consumed iDevice resources, such as storage, battery life, and bandwidth.” Id. at 1054. Plaintiffs further alleged that every time an application was downloaded, personal information was sent to app developers and that Apple designed the iPhone to continually send geographic location information to its servers. Id. at 1050. Similarly, in In re Google Android Consumer Privacy Litig., 11-MD-02264 JSW, 2013 WL 1283236 (N.D.Cal. Mar. 26, 2013), plaintiffs alleged that certain “spyware” had been installed in the Android OS and that this spyware tracked and transmitted their geographic location. Id. at *2. Plaintiffs alleged that these transmissions resulted in a decrease to their device’s battery life “because the process of collecting geolocation data is resource intensive and consumers battery life.” Id. at *2. While the court found the standing question “close” because the plaintiffs had not alleged how frequently Google had collected the data in question (and thus how often it used the device’s resources), it nonetheless found the allegation sufficient for the pleading stage. Id. at *4, 5. Finally, in Goodman v. HTC America, Inc., No. C11-1793MJP, 2012 WL 2412070 (W.D.Wash. June 26, 2012), the court found allegations of drained system resources sufficient for standing purposes where it was alleged that the defendant’s application collected, and sent, the user’s geographic information every three hours or whenever the mobile device’s screen was refreshed. Id. at *7. The court found the alleged injury “both specific and plausible.” Id.

It is evident that where plaintiffs have alleged more than a “de minimis” injury to their device’s mobile resources as a result of “systemic rather than episodic” use of those resources, standing will be found. In re Google, Inc Privacy Litig., 2013 WL 6248499, at *7. Thus, in In re Google, the court found a cognizable injury in fact had been alleged where plaintiffs claimed that defendant uploaded the plaintiffs location information every time an application was downloaded (with one plaintiff alleging that it occurred 27 times). See id.

The Plaintiffs’ bare assertion that Carrier IQ “taxed” each Plaintiffs “battery, processor, and memory” would likely be insufficient to state a sufficient injury-in-fact for standing purposes. However, the SCAC provides further factual enhancement that makes Plaintiffs’ allegations plausible for purposes of the pleading stage. Specifically, the SCAC alleges that

Android developer Tim Schofield researched the presence of the Carrier IQ Software on multiple Android smart-phone platforms. He has noted that in addition to the privacy issues, the embedded Carrier IQ Software necessarily degrades the performance of any device on which it is installed. The Carrier IQ Software is always operating and cannot be turned off. It necessarily uses system resources, thus slowing performance and decreasing battery life. As a result, because of the Carrier IQ Software, in addition to having their private communications intercepted, plaintiffs and prospective class members are not getting the optimal performance of the mobile devices they purchased, and which are marketed, in part, based on their speed, performance, and battery life.

SCAC ¶ 85 (emphasis added) (citation omitted). Plaintiffs elsewhere in the SCAC repeat the allegation that the Carrier IQ Software is always operating and cannot be turned off. See, e.g. id. ¶¶ 40, 64, 74. Taking these allegations as true, and drawing all plausible inferences in Plaintiffs’ favor, the Court concludes that Plaintiffs have sufficiently alleged that the Carrier IQ Software has had a “systemic,” rather than “episodic,” effect on the resources of Plaintiffs’ mobile devices. This is sufficient to plausibly allege standing at the pleading stage.

Defendants argue that Plaintiffs have failed to allege that the specific functions-of the Carrier IQ Software that at issue had incremental effect on battery life or performance above and beyond the Software’s legitimate uses. However, such an effect may clearly be inferred from the SCAC. As Plaintiffs have alleged that the Carrier IQ Software is always on, the continual operation of the Software in obtaining this information plausibly alleges and implies the Software has more than a de minimis impact on the battery life and performance of Plaintiffs’ mobile devices. See In re Google Android Consumer Privacy Litig., 2013 WL 1283236, at *4-5; Goodman, 2012 WL 2412070, at *7.

Defendants motion to dismiss Plaintiffs’ CCDAFA and other state consumer protection statute claims for lack of standing is accordingly DENIED.

2. Plaintiffs Cribbs and Pipkin’s Standing

Defendants argue that Plaintiffs Cribbs and Pipkin do not have standing because the allegations in the SCAC affirmatively establish that they have not suffered any injury. They point to the allegations in Paragraph 53 of the SCAC which, quoting an AT & T letter to Senator A1 Franken, states: “AT & T indicated further that the software ‘also is embedded on the HTC Vivid, LG Nitro and Samsung Skyrocket devices, but has not been activated due to the potential for the software agent to interfere with the performance of those devices.’ ” SCAC ¶ 53. This is significant because Plaintiffs Cribbs and Pipkin are both alleged to have Samsung Skyrocket devices. See SCAC ¶¶ 9, 17. Defendants therefore contend that the Carrier IQ Software could not have caused Plaintiffs Cribbs and Pipkin any injury.

Plaintiffs respond that they have properly alleged that “Carrier IQ Software and related implementing or porting software was installed and operating on [their] device[s], and taxing [their] device[s’] battery, processor, and memory.” Id. ¶¶ 9 17. They further argue that the quote Defendants rely upon was a “from AT & T’s December 14, 2011 letter to Sen. Franken, and not a factual allegation from plaintiffs’ experience or their counsel’s investigation, which is ongoing.” Docket No. 309, at 29.

Defendants are correct that the Plaintiffs’ various allegations on this point appear to be in tension with each other. However, this tension is not fatal to Plaintiffs’ standing at this stage of the proceedings. The allegations in the SCAC at Paragraph 53 quote a letter from AT & T. Taking all inferences in Plaintiffs’ favor, this letter suggests that AT & T chose not to activate the Carrier IQ Software on Samsung Skyrocket devices out of concerns for performance on those devices. There are no allegations in the SCAC, however, that Plaintiffs Cribbs or Pipkin used AT & T as their carrier. Given that the SCAC alleges that mobile carriers have the power to deactivate or remove the Carrier IQ Software, see SCAC ¶ 55 (Sprint indicating that it “began removing the Carrier IQ Software from mobile devices”), it is possible that the Carrier IQ Software was activated on Samsung Skyrocket devices used on mobile carriers other than AT & T. The allegations of the complaint must be taken as true and all reasonable inferences must be drawn in Plaintiffs’ favor. So viewed, the Court concludes that Plaintiffs Cribbs and Pipkin have adequately alleged standing for purposes of the pleading stage. Whether the Carrier IQ Software was activated on their devices is a question properly directed at the summary judgment stage.

Defendants’ motion to dismiss Plaintiff Cribbs’ and Plaintiff Pipkin’s claims for lack of standing is DENIED.

3. A Plaintiff’s Standing to Assert Claims Under State Laws from States in Which He Does Not Reside and Against Defendants Who Did Not Manufacture His Device

Defendants’ final argument is that this Court should dismiss for lack of standing any state law claims arising under the laws of a state in which no Plaintiff resides and as to devices not purchased by any named Plaintiff in states in which no Plaintiff resides. Defendants also argue that each individually named Plaintiff only has standing to assert claims against the Device Manufacturer who made his or her mobile device, and not those who manufactured phones purchased by others.

Plaintiffs have adequately alleged an injury-in-fact as to their individual state law claims for the reasons discussed above. As the Device Manufacturers have correctly pointed out, however, there is currently no named plaintiff who can assert an injury-in-fact arising under many of the state laws asserted; nor is there a named plaintiff who can assert certain state law claims against specific Device Manufacturers. While the putative class may be defined to include those with such standing, no class has yet been certified. See In re TFT-LCD (Flat Panel) Antitrust Litig., No. M.071827 SI, 2011 WL 1753784 (N.D.Cal. May 9, 2011) (recognizing that “‘putative class members are not parties to an action prior to class certification’ ” (quoting Saleh v. Titan Corp., 353 F.Supp.2d 1087, 1091 (S.D.Cal.2004)). As discussed below, the critical question is whether the Court should adjudicate the standing question now at the pre-certification pleading stage as measured by the named plaintiffs only or, as Plaintiffs maintain, the Court should defer consideration of the standing question until after deciding class certification.

Given the prevalence of nationwide class actions, it is perhaps surprising that there is no Ninth Circuit precedent specifically deciding this question. See Los Gatos Mercantile, Inc. v. E.I. DuPont De Nemours & Co., No. 13-cv-01180-BLF, 2014 WL 4774611, at *3 (N.D.Cal. Sept. 22, 2014) (“Surprisingly, there is no controlling case law on this issue.”). The Device Manufacturers contend, however, that Easter v. American West Financial, 381 F.3d 948 (9th Cir.2004), is controlling and requires the Court to address its standing arguments at the initial pleading stage. In Easter, home loan borrowers sued a number of defendants alleging that they charged usurious mortgage interest rates — including defendants who had not harmed any of the named plaintiffs. In this precise circumstance — where certain defendants had been included in a lawsuit when no named Plaintiff had Article III standing to assert any claim, against them — the Ninth Circuit noted (with almost no analysis or discussion) that the “district court correctly addressed the issue of standing before it addressed the issue of class certification.” Id. at 962. Easter stands for the unremarkable proposition that for a class action to proceed between the named parties, each named plaintiff must have standing to sue at least one named defendant; to hold each defendant in the case, there must be at least one named plaintiff with standing to sue said defendant. Without such threshold standing, the case (or that portion of the case) could not proceed. In Easter, there was no named plaintiff that was injured by and therefore had standing to sue a number of the defendants. Absent such threshold standing, it would be improper to allow the case to proceed to e.g., class certification.

The case at bar is distinguishable. Unlike in Easter, here there is a named plaintiff in this suit who has Article III standing to assert a claim against each of the Device Manufacturers. This is what was missing in Easter: the threshold standing that might permit the case to proceed beyond the initial pleading state to class certification did not exist in Easter as it does here. Easter did not address the question: Whether, once threshold standing is established, the Court has the power to certify the class before addressing the standing of unnamed class members. Easter did not broadly hold that district courts must always address standing issues before class certification.

Any doubt as to the limited scope of Easter holding was resolved in Perez v. Nidek Co., Ltd., 711 F.3d 1109 (9th Cir.2013). There, the Ninth Circuit recognized this question was an open one, expressly declining to reach the “difficult chicken-and-egg question of whether class certification should be decided before standing.” Id. at. 1113-14. Indeed, the Supreme Court in Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) noted that that there was “tension in [its] prior cases” as to whether differences between a named plaintiffs claims and the unnamed class members’ claims should be treated as a standing issue or one of adequacy and typicality under Federal Rule of Civil Procedure 23. See id. at 263, 123 S.Ct. 2411 n.15; see also id. at 263, 123 S.Ct. 2411 (“As an initial matter, there is a question whether the relevance of this variation [between use of race in undergraduate transfer admissions and use of race in graduate admissions], if any, is a matter of Article III standing at all or whether it goes to the propriety of class certification pursuant to Federal Rule of Civil Procedure 23(a)”). Commentators have made similar observations. See William B. Rubenstein, Newberg on Class Actions § 2.6 (5th ed.).

It is not surprising, therefore, that district courts across the country have split on whether standing questions in the class action context can be deferred until after class certification. See, e.g., Los Gatos Mercantile, 2014 WL 4774611, *3-4 (noting the division and citing cases); see also In re Refrigerant Compressors Antitrust Litig., No. 2:09-md-02042, 2012 WL 2917365 (E.D.Mich. July 17, 2012) (“There is currently a split among federal courts as to ... the question of whether standing can be considered prior to class certification in class action lawsuits”).

Many courts — including a number of courts in this District — have refused to defer consideration of these issues, treating it as a threshold matter that should be addressed at the pleading stage. See, e.g., Los Gatos Mercantile, 2014 WL 4774611, at *4; see also Pardini v. Unilever United States, Inc., 961 F.Supp.2d 1048 (N.D.Cal.2013) (“[T]here is only one named plaintiff and she has not alleged that she purchased ICBINBS outside of California. Thus, Plaintiff does not have standing to assert a claim under the consumer protection laws of the other states named in the Complaint. This is a pleading defect amenable to determination prior to a motion for class certification.”); In re Flash Memory Antitrust Litigation, 643 F.Supp.2d 1133, 1164 (N.D.Cal.2009) (“A class cannot assert a claim on behalf of an individual that they do not represent. Where ... a representative plaintiff is lacking for a particular state, all claims based on that state’s laws are subject to dismissal.”).

The courts in these case have attempted to generalize Article III principles. In Los Gatos Mercantile, for instance, the court noted that where a complaint includes multiple claims “at least one named class representative must have Article III standing to raise each claim” and that in a class action “ ‘each claim must be analyzed separately, and a claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim.’ ” Los Gatos Mercantile, 2014 WL 4774611, *4. Similarly, in In re Ditropan XL Antitrust Litig., 529 F.Supp.2d 1098 (N.D.Cal.2007), the court relied on the proposition that named plaintiffs only have standing if he can allege and show that, “they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which thy purport to represent.” Id. (quoting Lewis v. Casey, 518 U.S. 343, 347, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)). These courts have looked at claims brought under the laws of states in which no named plaintiff resided and concluded that the named plaintiff lacked standing to assert such claims. On the critical question of whether these standing principles may be examined after certification (when the unnamed class members become parties to the suit), these courts have read Easter broadly as requiring that standing considerations should be addressed prior to class certification. See, e.g., id. at 1107 (dismissing plaintiffs’ argument that the “determination of standing is premature prior to class certification” on the ground that Easter had rejected this “exact argument”); see also Fenerjian v. Nongshim Co., Ltd., 2014 WL 5685562 (N.D.Cal. Nov. 4, 2014) (“Class allegations are typically tested on a motion for class certification, not at the pleading stage. However, the Ninth Circuit has stated that standing should be addressed before class certification.” (citing Easter, 381 F.3d at 962)).

In addition, some courts have articulated prudential reasons for adjudicating these class-oriented standing questions at the pleading stage. For example, in In re Wellbutrin XL Antitrust Litig., 260 F.R.D. 143 (E.D.Pa.2009), the court stated:

The alternative proposed by the plaintiffs [deferring consideration until class certification] would allow named plaintiffs in a proposed class action, with no injuries in relation to the laws of certain states referenced in their complaint to embark on lengthy class discovery with respect to injuries in potentially every state in the Union. At the conclusion of that discovery, the plaintiffs would apply for class certification, proposing to represent the claims of parties whose injuries and modes of redress would not share. That would present the precise problem that the limitations of standing seek to avoid.

Id. at 155. The court declined to “indulge in the prolonged and expensive implications of the plaintiffs’ position only to be faced with the same problem months down the road.” Id.

While the above cases are not without logical force, the Court concludes that a strict categorical requirement that the standing analysis must precede class certification is unwarranted. First, for the reasons stated above, Easter cannot be read so broadly. Its facts are narrow, and the Supreme Court in Gratz and the Ninth Circuit in Perez have confirmed this is an open question.

Furthermore, the Supreme Court has expressly recognized that, in at least some cases, courts may address class certification prior to resolving standing questions. In both Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999) and Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), the Supreme Court held that the lower courts had properly addressed class certification first prior to Article III standing questions. Specifically, the Court stated that because resolution of the certification issues was “logically antecedent to the existence of any Article III issues, it is appropriate to reach them first.” Amchem, 521 U.S. at 612, 117 S.Ct. 2231; see also Ortiz, 527 U.S. at 831, 119 S.Ct. 2295 (“Thus the issue about Rule 23 certification should .be treated first, ‘mindful that [the Rule’s] requirements must be interpreted in keeping with Article III constraints.’ ”). Both Ortiz and Amchem involved a global settlement in asbestos class actions. Among the unnamed class members in both cases were “exposure only” plaintiffs — individuals who had been exposed to asbestos but had not yet experienced any physical injury. The Supreme Court in both cases stated that class certification questions could be addressed first as they were “logically antecedent” to the standing questions. See Ortiz, 527 U.S. at 831, 119 S.Ct. 2295; Amchem, 521 U.S. at 612, 117 S.Ct. 2231. These “logically antecedent” cases, although arising under unusual contexts, demonstrate that the Supreme Court has not insisted upon a rigid ordering where all standing questions must be determined prior to class certification; these eases establish that the ordering of standing versus class certification is not driven by a rigid constitutional command.

To be sure, the precise contours of the “logically antecedent” doctrine coined in Ortiz and Amchem are subject to dispute, with at least one commentator noting that the concept has “caused a great deal of mischief.” See Linda S. Mullenix, Standing and Other Dispositive Motions After Amchem and Ortiz: The Problem of “Logically Antecedent Inquiries, 2004 Mich. St. L.Rev. 703, 707. The Northern District of Illinois has concisely summarized the three dominant approaches to Ortiz and Am-chem’s “logically antecedent” language as follows:

Some courts have taken an almost categorical approach, routinely resolving class certification questions prior to conducting a standing inquiry. Others have taken a “nuanced” approach, attempting to fashion a governing principle to determine when class certification is considered “logically antecedent.” Finally, some courts limit Ortiz and Amchem to the “very specific situation of a mandatory global settlement class,” and do not interpret those cases to require courts to consider class certification before standing.

In re Plasma-Derivative Proten Therapies Antitrust Litig., No. MDL 2109, 2012 WL 39766 (N.D.Ill. Jan. 9, 2012). For the reasons discussed above, this Court concludes that a more nuanced reading of the “logically antecedent” doctrine is required, a reading which affords flexibility in the court’s management of the ordering of these issues.

A leading commentator has noted that “[m]ost courts have interpreted Amchem and Ortiz narrowly, holding that those cases stand for a limited exception that class certification can be considered before standing in global settlement-only mass tort class actions.” Rubenstein, supra, § 2:2 (5th ed.); see also Hoffman v. UBS-AG, 591 F.Supp.2d 522, 531 (S.D.N.Y.2008) (noting that Ortiz is limited to the “unique context of global-mass settlements”). However, that commentator recognizes that a “ ‘growing consensus’ among lower courts is that class certification should indeed be decided first “where its outcome will affect the Article III standing determination.’” Rubenstein, supra, § 2:2 (quoting Winfield v. Citibank, N.A., 842 F.Supp.2d 560, 574 (S.D.N.Y.2012). As the Seventh Circuit has noted:

once a class is properly certified, statutory and Article III standing requirements must be assessed with reference to the class as a whole, not simply with reference to the individual named plaintiffs. The certification of a class changes the standing aspects of a suit, because “[a] properly certified class has a legal status separate from and independent of the interest asserted by the named plaintiff.”

Payton v. County of Kane, 308 F.3d 673, 680 (7th Cir.2002). The Ninth Circuit has similarly recognized that “once a class has been certified, “the class of unnamed persons described in the certification acquire[s] a legal status separate from the representative.’ ” Bates v. United Parcel Service, Inc., 511 F.3d 974, 987 (9th Cir.2007) (quoting Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975)).

Indeed, a number of cases in this “growing consensus” have addressed this issue in the precise “sister state” law scenario raised in this case and found class certification to be logically antecedent to class considerations. For example, in Having v. Transnation Title Ins. Co., 545 F.Supp.2d 662 (E.D.Mich.2008), plaintiff brought a class action alleging that the defendant title insurance company overcharged its premium on title insurance. See id. at 664. Plaintiff resided in Michigan, but sought to represent a class of consumers harmed by the defendant in Michigan, Arizona, Colorado, Maryland, Minnesota, Missouri, New Jersey, and Washington. Id. The court recognized that it was undisputed that plaintiff had established standing under Michigan law. It then found that in order for him to represent the putative class, “he must establish that his claim is typical of those individuals whose claims arise under the laws of the other states and he can represent those individuals adequately.” Id. at 668. According to the court, this analysis was necessarily, and logically, antecedent to questions of standing:

For example, with the facts presented in the complaint, the plaintiff certainly could not file an individual suit only seeking relief under Arizona law; however, a member of his proposed class from that state likely would have suffered an injury that could be redressed under Arizona law. The defendant has not seriously challenged the plaintiffs standing to assert his claims arising from the alleged overcharge on his own refinancing transaction. The question whether he has standing to proceed as a class representative will be subsumed in the class certification decision, but it the argument does not support the defendant’s requested dismissal presently.

Id. at 668. Similarly, in Jepson v. Ticor Title Insurance Company, No. C06-1723-JCC, 2007 WL 2060856 (W.D.Wash. May 1, 2007), the district court found that where a named plaintiff had established individual standing, questions about the plaintiffs ability to represent a class consisting of residents from other states were logically antecedent to standing inquiries because “there [was] no question that the proposed class would have standing to assert non-Washington claims if it were certified.” Id. at *1.

Because of the nature of class certification — a process wherein members of the class acquire legal status once a class is certified — standing may be established by looking to the rights and interests of the members of the certified class; see Sosna v. Iowa, 419 U.S. 393, 401, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (although controversy was no longer alive as to the named plaintiff, “it remains very much alive for the class of persons she has been certified to represent.”). Thus, class certification may, in a true sense of the term, be “logically antecedent” to standing.

The conclusion that it is permissible to decide class certification before determining standing to pursue claims of unnamed class members is consistent with Article III. Provided there is threshold standing for each named plaintiff, ordering the adjudication process so as to address who cognizable parties are in the case (ie., whether unnamed class members have legal status) before addressing standing does no violence to Article III. A case or controversy may still be assured once the class is certified.

This conclusion is also consistent with a body of cases that have examined the question whether a named plaintiff in consumer class action can bring suit on behalf of individuals who purchased products different from, but similar to, those purchased by the named plaintiff. In these cases, it could be argued that the named plaintiff would not have Article III standing to assert directly such claims against the defendant — having never purchased the “similar” product, he or she can not claim to have suffered an injury-in-fact from that product. Despite this fact, a growing number of courts in this District allow these putative class actions to proceed as to the “similar” product claims and leave for class certification the question of whether the named plaintiff can adequately represent a class of individuals who purchased the “similar” products. See, e.g., Rojas v. General Mills, Inc., No. 12-cv-05099-WHO, 2014 WL 1248017, at *10 (N.D.Cal. Mar. 26, 2014); Bruton v. Gerber Prods. Co., No. 12-CV-02412-LHK, 2014 WL 172111 (N.D.Cal. Jan. 15, 2014). Clancy v. Bromley Tea Company, No. 12-cv-03003-JST, 2013 WL 4081632 (N.D.Cal. Aug. 9, 2013) provides a cogent discussion of the reasoning underlying these cases. There, the court noted that “[tjransmogri-fying typicality or commonality into an issue of standing would undermine the well-established principles that ‘[i]n a class action, standing is satisfied if at least one named plaintiff meets the requirements,’ and that ‘[t]he class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’ ” Id. at *5 (quoting first Bates, 511 F.3d at 985 and then Wal-Mart Stores, Inc. v. Dukes, — U.S. ——, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2001)). The court continued:

Deciding at the pleading stage that a plaintiff cannot represent a class who purchased any different products than the plaintiff seems unwarranted, at least on the facts of this case. A plaintiff has sufficiently “typical” claims to represent a class if his claims “are reasonably coextensive with those of absent class members; they need not be substantially identical.” Whether products are “sufficiently similar” is an appropriate inquiry, but it does not relate to standing: a plaintiff has no more standing to assert claims relating to a “similar” product he did not buy than he does to assert claims relating to a “dissimilar” product he did not buy. Seen this way, analyzing the “sufficient similarity” of the products is not a standing inquiry, but rather an early analysis of the typicality, adequacy, and commonality requirements of Rule 23.

Id.; see also Rubenstein, supra, § 2.6 (recognizing that addressing these questions at class certification is preferable insofar as Rule 23’s requirements “are designed precisely to address concerns about the relationship between the class representative and the class” and “focuses a court on pragmatic factors in a familiar and accessible manner”). These cases further exemplify the principle that there is no rigid rule that precludes class certification from being addressed before standing issues.

Accordingly, for the reasons discussed, the Court finds that it has the discretion to defer questions of standing until after class certification. Indeed, a number of courts, regardless of which analysis they have undertaken first, have couched their decision as one of discretion. For example, in United Food & Commercial Workers Local 1776, 2014 WL 6465235 (N.D.Cal. Nov. 17, 2014), the court, in deciding to address class certification at the pleading stage, stated:

The Ninth Circuit has confirmed that district courts can address ‘the issue of standing before it addresse[s] the issue of class certification.’ I find that the weight of the persuasive authority allows me to determine standing at this juncture, and that efficiency considerations militate against waiting until class certification to determine the scope of this case.

Id. at *19 (emphases added); see also In re Lithium, No. 13-MD-2420 YGR, 2014 WL 4955377 (N.D.Cal. Oct. 2, 2014) (“[T]he Court observes that the question of whether a plaintiff may represent a class of another state’s residents is not necessarily, or at least not only, an issue of standing. Rather, it is amendable to analysis as a matter of either standing or class representation.”); Kassman v. KPMG LLP, 925 F.Supp.2d 453 (S.D.N.Y.2013) (“The Supreme Court has held that a court may defer consideration of Article III standing until after class certification are ‘logically antecedent’ to Article III concerns.’ (emphasis added)). “Allows,” “can” or “may,” and similar language is indicative of a court recognizing that it possesses the discretion to take a given action.

On the facts of this ease, however, as to claims brought under 35 state laws, the Court declines to exercise this discretion and opts, as a matter of case management, to require the Plaintiffs to present a named class member who possesses individual standing to assert each state law’s claims against Defendants. It does so for several reasons. First, the Court notes that the named Plaintiffs in this action come from 13 different states. The number of consumers from 35 other states in which state law claims are asserted is vast relative to the claims to which the named Plaintiffs have standing. Compare In re Target Corp. Data Sec. Breach Litig., 2014 WL 7192478 (D.Minn. Dec. 18, 2014) (permitting class certification to proceed, noting that, “this is not a case where a single named plaintiff asserts the laws of a multitude of states in which that plaintiff does not reside. Rather, there are 114 named Plaintiffs who reside in every state in the union save four and the District of Columbia.”); with Insulate SB, Inc. v. Advanced Finishing Systems, Inc., No. 13-2664 ADM/SER, 2014 WL 943224 (D.Minn. Mar. 11, 2014) (refusing to allow class certification where single named plaintiff asserted claims arising under the laws of 22 states and Puerto Rico). The Court has reservations of subjecting the Device Manufacturers to the expense and burden of nationwide discovery without Plaintiffs first securing actual plaintiffs who clearly have standing and are willing and able to assert claims under these state laws. The policy concerns articulated by the court in In re Wellbutrin XL Antitrust Litig., 260 F.R.D. at 155, apply with particular force here. Moreover, given the breadth of the proposed class and the number of state law claims asserted on behalf of the class, there is a meaningful risk that the requirements of class certification under Rule 23 may not be met or, if they are, subclasses may have to be created which would engender delay (adding that any new named plaintiffs would likely be subject to another round of discovery and further class certification motion practice). It makes sense to address standing to bring some 35 state law claims before class certification.

In sum, although the Court believes Article III allows the district court to exercise discretion in ordering the determinations of class certification and standing, the Court finds it appropriate in this case to address standing in advance of class certification. In so doing, the Court finds the named Plaintiffs do not have standing to assert claims from states in which they do not reside or did not purchase their mobile device.

However, as to the named Plaintiffs’ ability to sue under their own laws Device Manufacturers from whom other named Plaintiffs bought devices, the Court will exercise its discretion to defer determination of standing until after class certification. In contrast to Easter, these Defendants are properly in the case (having allegedly sold a device to at least one named Plaintiff); the potential burden of adjudicating class certification will not impose the kind of expansive burden entailed in permitting plaintiffs to sue each defendant under the laws of 35 other states.

Accordingly, the motion to dismiss claims brought under the laws of Alaska, Arkansas, Colorado, Delaware, District of Columbia, Hawaii, Idaho, Indiana, Kansas, Louisiana, Maine, Massachusetts, Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, New Hampshire, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, West Virginia, and Wyoming is granted for lack of standing by the named Plaintiffs. The motion to dismiss named Plaintiffs’ claim against each of the Defendant Device Manufacturers is denied without prejudice to renewal after the Court addresses class certification.

C. Plaintiffs’ Federal Wiretap Act Claim

The Federal Wiretap Act (“Wiretap Act”), 18 U.S.C. § 2510-2520, “is designed to prohibit ‘all wiretapping and electronic surveillance by persons other than duly authorized law enforcement officials engaged in investigation of specified types of major crimes.’” Greenfield v. Kootenai County, 752 F.2d 1387, 1388 (9th Cir.1985) (quoting S. Rep. No. 1097, 90th Cong., 2d Sess.). Plaintiffs allege that the Defendants violated 18 U.S.C. § 2511(l)(a), which makes it unlawful for a person to:

“intentionally intercept ], endeavor[ ] to intercept, or procure[ ] any other person to intercept or endeavor to intercept, any wire,, oral, or electronic communication.”

Id. § 2511(l)(a). The Act defines the term “intercept” as the “aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” Id. § 2510(4). Under 18 U.S.C. § 2520, anyone who has been damaged by the interception or disclosure of their communications in violation of the Wiretap Act are entitled to: (1) any preliminary, equitable, or declaratory relief that may be appropriate; (2) statutory and punitive damages; and (3) reasonable attorney’s fees. See 18 U.S.C. § 2520(b).

Defendants argue that Plaintiffs’ Wiretap Act claims fail because (1) Plaintiffs fail to allege Defendants “intercepted” any communications, as that term has been defined and applied by the Ninth Circuit; (2) the Carrier IQ Software is not a “device” as required by the Wiretap Act; (3) many of Plaintiffs’ allegations do not involve “contents” of communications; and (4) Plaintiffs have not alleged that any of

the Device Manufacturers “acquired” any electronic communications.

1. Plaintiffs Have Adequately Alleged an “Interception” for Purposes of the Wiretap Act

As discussed above, “intercept” is defined as the “aural or other acquisition of the contents” of a communication. 18 U.S.C. § 2510(4) (emphasis added). The term “acquisition” is not defined in the statute, but the Ninth Circuit, looking at the term’s “ordinary meaning” has defined it as the “act of acquiring, or coming into possession of.” United States v. Smith, 155 F.3d 1051, 1055 n. 7 (9th Cir.1998). It has further held that “[s]uch acquisition occurs ‘when the contents of a wire communication are captured or redirected in any way,’ ” Noel v. Hall, 568 F.3d 743, 749 (9th Cir.2009) (quoting United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir.1992)).

Central to Defendants’ arguments in this case, the Ninth Circuit has construed the Wiretap Act’s interception element as requiring that the defendant intercept the communication in questions contemporaneously with transmission. In Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir.2002), the Ninth Circuit held that for an electronic communication to be “intercepted,” it must have been “acquired during transmission, not while it is in electronic storage.” Id. at 878; see also United States v. Steiger, 318 F.3d 1039, 1048-49 (11th Cir.2003) (holding that “contemporaneous interception — ie., an acquisition during flight — is required to implicate the Wiretap Act with respect to electronic communications”). Accordingly, under this interpretation of the interception requirement, tapping into or otherwise gaining unauthorized access into an individual’s voicemail and retrieving a saved voicemail message would not constitute an “interception” under the Wiretap Act.

In Konop, the Ninth Circuit found that a narrow definition of “intercept” which required acquisition contemporaneous with transmission was most “consistent with the ordinary meaning of ‘intercept,’ which is ‘to stop, seize, or interrupt in progress or course before arrival.’ ” Konop, 302 F.3d at 878 (quoting Webster’s Ninth New Collegiate Dictiona