Opperman v. Path, Inc. (87 F. Supp. 3d 1018, 2014)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS

Re: ECF Nos. 393, 394, 395, 396

JON S. TIGAR, United States District Judge

THIS DOCUMENT RELATES TO ALL CASES

I. Background... 1029

A. The App Store... 1031

B. The Subject Apps... 1032

C. Apple’s Representations... 1034

II. Legal Standards... 1034

III. Apple’s Motion to Dismiss... 1036

A. Article III Standing.. .1036

B. Communications Decency Act... 1042

C. Misrepresentation Claims... 1045

D. California Comprehensive Computer Data Access and Fraud Act... 1053

E. Strict Products Liability: Design Defect and Failure to Warn... 1054

F. Negligence... 1055

G. RICO... 1055

H. Aiding and Abetting... 1055

IV. App Defendants’ Motions to Dismiss ...1055

A. Article III Standing... 1055

B. Plaintiffs’ UCL Claims... 1058

C. Invasion of Privacy: Intrusion Upon Seclusion... 1058

D. Invasion of Privacy: Public Disclosure of Private Facts... 1061

E. CDAEA and Computer Fraud and Abuse Act.. .1062

F. Electronic Communications Privacy Act... 1063

G. Texas and California Wiretap Statutes ...1063

H. Texas Theft Liability Act... 1064

I. RICO and Vicarious Liability...^

V. Facebook and Gowalla’s Motion to Dismiss... 1064

A. Uniform Fraudulent Transfer Act.. .1065

B. Successor Liability.. .1066

C. Aiding and Abetting... 1067

VI. Conclusion... 1067

Before the Court are four motions to dismiss filed by Defendants in this action. The operative Consolidated Amended Class Action Complaint (“CAC”), ECF No. 362, collects the claims of fifteen plaintiffs in four related actions against a total of fifteen Defendants. Defendant Apple Inc. designs and manufactures the iPhone, the iPod touch, and the iPad, (“iDevices”), each of which is a mobile device that can wirelessly access the Internet. Since 2008, those devices have included an App Store, which enables users to download software, or apps, to their devices created by third parties. Each Defendant except for Apple is an app developer (collectively, “App Defendants”). Plaintiffs allege that the App Defendants’ apps have been surreptitiously stealing and disseminating the contact information stored by customers on Apple devices. CAC ¶ 7.

1. BACKGROUND

Plaintiffs bring this action on their own behalf, on behalf of an “iDevice Class,” composed of all purchasers of Apple’s iDevices between July 10, 2008 and the present who downloaded the App Defendants’ apps, and on behalf of three subclasses: the “Malware Subclass,” the “Address Book Subclass,” and the “Texas Subclass.” CAC ¶ 48. The Malware Subclass comprises those who downloaded the subject apps. The Address Book Subclass comprises those in the Malware Subclass whose iDevice, without requesting prior approval, “transmitted,. disclosed, and/or disseminated the iDevice’s mobile address book (or substantial portions thereof) over the Internet and/or to third-parties” due to the subject apps.

The CAC asserts several overlapping claims against different Defendants on behalf of different Plaintiffs. In total, the CAC asserts the following statutory claims: violation of California’s Unfair Competition, Law (“UCL”), Cal. Bus. & Prof.s Code § 17200, et seq.; violation of California’s False and Misleading Advertising Law (“FAL”), Cal. Bus. & Prof.s Code § 17500, et seq.; violation of California’s Consumer Legal Remedies Act (“CLRA”), Cal. Civ.Code § 1750, et seq.; violation of the California Comprehensive Computer Data Access and Fraud Act (“CDAFA”), Cal. Pen.Code § 502;' violation of California’s Wiretap / Invasion of Privacy Act, Cal. Pen.Code § 630, et seq.; violation of the Uniform Fraudulent Transfer Act, Cal. Civ.Code § 3439; violation of the Texas Wiretap Acts, Tex.Code Crim. P. art. 18.20, § 1(3) and Tex. Pen.Code § 16.02(a); violation of the Texas Theft Liability Act, Tex. Pen.Code § 31.03; violation of the federal Computer Fraud & Abuse Act, 18 U.S.C. § 1030; violation of the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2510; and violation of Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961-1964. In addition, Plaintiffs assert common law claims for negligent misrepresentation, invasion of privacy (intrusion upon seclusion and public disclosure of private facts), conversion, trespass to personal property and/or chattel, misappropriation, strict product liability (design defect and failure to warn), negligence, and secondary and vicarious liability.

The following chart shows which claims each Plaintiff asserts against each Defendant:

Cause of Action On Behalf of Against

1. UCL All Plaintiffs Apple

2. UCL Opperman Plaintiffs Apple

3. UCL Plaintiffs Except Pirozzi App Defendants

4. FAL All Plaintiffs. Apple

5. FAL Opperman Plaintiffs Apple

6. CLRA All Plaintiffs Apple

7. CLRA Oppennan Plaintiffs Apple

8. Negligent Misrepresentation All Plaintiffs Apple

9. Negligent Misrepresentation Opperman Plaintiffs Apple

Cause of Action On Behalf of Against

10 CDAFA Plaintiffs Except Pirozzi All Defendants

11 CFAA Plaintiffs Except Pirozzi App Defendants

12 ECPA Plaintiffs Except Pirozzi App Defendants

13 Wiretap/Invasion of Privacy Act CAD Plaintiffs Foodspotting, Instagram, Path, Twitter, and Yelp

14 Texas Wiretap Acts Texas Plaintiffs App Defendants

15 Intrusion Upon Seclusion Opperman Plaintiffs App Defendants

16 Public Disclosure of Private Facts Opperman Plaintiffs App Defendants

17 Conversion Plaintiffs Except Pirozzi All Defendants

18 Trespass to Property Opperman Plaintiffs All Defendants

19 Texas Theft Liability Act Texas Plaintiffs App Defendants

20 Misappropriation Opperman Plaintiffs App Defendants

21 Strict Products Liability: Design Defect Opperman Plaintiffs Apple

22 Strict Products Liability: Failure to Warn Opperman Plaintiffs Apple

23 NegligencePlaintiffs Except Pirozzi All Defendants

24 Uniform Fraudulent Transfer Act Gowalla Plaintiffs Gowalla and Facebook

25 RICO Opperman Plaintiffs All Defendants

26 Secondary and Vicarious Liability Opperman Plaintiffs All Defendants

The following summary of Plaintiffs’ allegations is taken from the complaint. As it must, the Court accepts the CAC’s allegations as true for purposes of this motion.

A. The App Store

Apple launched the App Store in 2008, and heavily promoted it in conjunction with its iDevices. CAC ¶ 57. The promotion was successful: the App Store today has over 700,000 apps for iPhone and iPod touch, and 275,000 apps for the iPad. Since 2008, customers have downloaded over forty billion apps. Id.

Apple maintains “exclusive domain” and “ultimate control” over the App Store’s offerings. iDevices are designed only to accept apps from the App Store, and Apple decides which apps will be offered, and which will not. CAC ¶ 60. iDevices also come with pre-programmed apps built into the device’s operating system. Among those apps is Apple’s “Contacts” app — a virtual address book. The App Store is another one. CAC ¶ 61. Neither of these built-in apps can be removed by the user.

“Apple claims to review each application before offering it to its users, purports to have implemented apps privacy standards, and claims to have created a strong privacy protection for its customers.” CAC ¶ 62. However, some apps offered on the App Store are alleged to have accessed and uploaded information from customers’ iDeviees without their knowledge, including contact information. Plaintiffs allege that Apple has failed to safeguard the App Store from such apps, while representing to the public that Apple’s products are “safe and secure.” CAC ¶ 64.

Apple is “notorious for complete control over its products.” CAC ¶ 87. App developers must submit their apps to Apple for review, and Apple decides whether to offer them on the App Store. To be eligible for inclusion, third-party app developers must register with Apple and agree to the iOS Developer Agreement (“IDA”) and the Program License Agreement (“PLA”), as well as pay a yearly registration fee. CAC ¶ 87-89. Apple reserves the right to reject apps for any reason, and has explicitly reserved the right to reject apps that breach the licensing agreements, provide Apple with inaccurate documents or information, or violate, misappropriate, or infringe the rights of a third party. CAC ¶ 90. After joining the program, app developers use Apple’s software development kit (“SDK”), which provides guidelines and tools for app development. CAC ¶ 91.

The App Store Review Guidelines prohibit the transmission of user data without prior permission. CAC ¶¶ 101, 104. However, Plaintiffs allege that Apple’s “iOS Human Interface Guidelines” encourage data theft. The guidelines are meant to guide developers as they create apps for the App Store. Apple tells developers, “don’t force people to give you information you can easily find for yourself, such as their contacts or calendar information,” and “[i]f possible, avoid requiring users to indicate their agreement to your [end user license agreement] when they first start your application. Without an agreement displayed, users can enjoy your application without delay.” CAC ¶ 212 (emphasis omitted).

Plaintiffs allege that “Apple taught Program registrants’ to incorporate forbidden data harvesting functionalities — even for private “contacts” — into their Apps and encouraged Program registrants to design those functions to operate in non-discernible manners that would not be noticed by the iDevice owner. These App Defendants, apparently in accord with Apple’s instructions, did just that with their identified Apps.” CAC ¶ 214.

Similarly, Plaintiffs allege: “Apple’s Program tutorials and developer sites [] teach Program registrants how to code and build apps that non-consensually access, manipulate, alter, use and upload the mobile address books maintained on Apple iDeviees.” CAC ¶ 190.

B. The Subject Apps

Plaintiffs allege that each of the App Defendants developed an app that copied iDevice users’ contact information without the user’s consent. In February 2012, it was revealed that App Defendant Path’s app, also called “Path,” was uploading users’ contacts and calendar information to its servers without users’ knowledge. Path’s CEO publicly apologized after the practice was made public. CAC ¶ 110.

Plaintiffs allege that several popular apps, including those designed by each App Defendant, have accessed and uploaded user data without consent. In some of these cases, the apps accessed user data without any prompt at all. See CAC ¶¶ 112, 136. Path is one such app. In other cases, the apps “surreptitiously accessed and uploaded information from users’ Contacts app through a ‘Find Friends’ feature without disclosing to users that the feature would leave their private information vulnerable to unauthorized download by the third-party app manufacturer.” CAC ¶ 108.

The public revelations concerning third parties’ access to users’ private information led Congressmen Waxman and But-terfield to write to Apple and to thirty-four app publishers in February and March of 2012, asking for more information about the practice. CAC ¶¶ 115-17

The February letter to Apple noted that Apple’s website at that time represented that iDevice apps “have access to a device’s global data such as contacts in the Address Book,” while Apple’s review guidelines required app developers to gain users’ permission prior to transmitting data about a user. CAC ¶ 115. The letter continues:

In spite of this guidance, claims have been made that “there’s a quiet understanding among many iOS app developers that it is acceptable to send a user’s entire address book, without their permission, to remote servers and then store it for future reference. It’s common practice, and many companies likely have your address book stored in their database.” One blogger claims to have conducted a survey of developers of popular iOS apps and found that 13 of 15 had a “contacts database with millions of records” — with one claiming to have a database containing “Mark Zuck-erberg’s cell phone number, Larry Ellison’s home phone number and Bill Gates’ cell phone number.

Id. In March 2012, Senator Schumer called for an investigation by the Federal Trade Commission. CAC ¶ 118. In September 2012, Apple released iOS 6, which updated privacy settings on iDevices in a manner that discloses which apps access users’ contacts, calendars, reminders, photos, and other personal information, and allows users a way to prevent certain apps from accessing certain information. CAC ¶ 120.

The following chart outlines the apps each Plaintiff alleges he or she downloaded and deployed:

C. Apple’s Representations

Plaintiffs allege that “Apple has repeatedly represented that Apple’s products are safe and secure, and that private information could not be accessed by third-party apps without the user’s express consent.” CAC ¶ 64. Throughout the CAC, Plaintiffs identify representations Apple has made on its website, in in-store advertisements, and otherwise, to the effect that iOS is “highly secure,” sometimes in particular with respect to the accessing of data by apps from other apps. See CAC ¶¶ 102-04,121-123.

For example, when the App Store first launched, Apple’s former CEO Steve Jobs explained, “[t]here are going to be some apps that we’re not going to distribute. Porn, malicious apps, apps that invade your privacy.” CAC ¶ 92. Plaintiffs allege that Apple repeated this refrain continuously during the launch of the App Store, and publicly took action consistent with these goals. See CAC ¶¶ 93-98. In October 2007, Jobs stated: “It will take until February to release an SDK because we’re trying to do two diametrically opposed things at once — provide an advanced and open platform to developers while at the same time protect iPhone users from viruses, malware, privacy attacks, etc. As our phones become more powerful, these malicious programs will become more dangerous.” CAC ¶ 94. At an SDK press conference on March 6, 2008, Jobs repeated that Apple would place limitations on third party apps for “malicious” and “illegal” content in order to address “privacy” concerns. CAC ¶ 93. Apple also “famously refused to integrate Adobe Flash technology” despite user demands. Jobs explained in April 2010 that this decision was made “because of reliability, security, and performance concerns.” CAC ¶ 97. “In sum, Apple has attempted to cultivate a perception that its products are safe and that Apple strives to protect users.” CAC ¶ 99.

In September 2011, Apple’s website stated that “iOS 4 is highly secure from the moment you turn on your iPhone. All apps run in a safe environment, so a website or app can’t access data from other apps.” CAC ¶ 102. Apple also assured consumers that, for data-security purposes, “Applications on the device are ‘sandboxed’ so they cannot access data stored by other applications.” CAC ¶ 209.

Apple’s “customer privacy policy” states that Apple takes “precautions — including administrative, technical, and physical measures — to safeguard your personal information against loss, theft, and misuse, as well as against unauthorized access, disclosure, alteration, and destruction.” CAC ¶ 122.

Plaintiffs further allege that “[f|rom 2008 to the present, the highest levels of Apple (from its founder to its current CEO to its corporate spokespersons) have so consistently expressed publicly that Apple protects its customers’ and iDevice owners’ security and privacy that — though inaccurate — it is ingrained into the image of Apple’s culture, products and offerings as well as in the minds of customers.” CAC ¶ 211.

Plaintiffs allege they saw and relied on Apple’s website, in-store advertisements, and television advertising in purchasing their iDevices, and that they would have paid less for their devices, or not purchased them at all, had they known they were vulnerable to privacy attacks. See CAC ¶ 125-26.

II. LEGAL STANDARDS

On a motion to dismiss, the Court accepts the material facts alleged in the complaint, together with all reasonable inferences to be drawn from those facts, as true. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). However, “the tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). To be entitled to the presumption of truth, a complaint’s allegations “must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.2011), cert. den’d, — U.S.-, 132 S.Ct. 2101, 182 L.Ed.2d 882 (2012).

To survive a motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plausibility does not mean probability, but it requires “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 687, 129 S.Ct. 1937. “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. In the Ninth Circuit, “[i]f there are two alternative explanations, one advanced by defendant and the other advanced by plaintiff, both of which are plausible, plaintiffs complaint survives a motion to dismiss under Rule 12(b)(6). Plaintiffs complaint may be dismissed only when defendant’s plausible alternative explanation is so convincing that plaintiff’s explanation is implausible.” Starr, 652 F.3d at 1216 (original emphasis).

In addition, fraud claims are subject to a heightened pleading standard. “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R.Civ.P. 9(b). The allegations must be specific enough to give a defendant notice of the particular misconduct alleged to constitute the fraud such that the defendant may defend against the charge. Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir.1985). In general, allegations sounding in fraud must contain “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, 765 (9th Cir.2007). However, “[mjalice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed.R.Civ.P. 9(b).

Finally, a “Rule 12(b)(1) jurisdictional attack may be facial or factual. In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004) (citation omitted). In resolving a facial attack, courts assume that the allegations are true, and draw all reasonable inferences in the plaintiffs favor. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.2004) (citations omitted). “In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. The court need not presume the truthfulness of the plaintiffs allegations. Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Safe Air, 373 F.3d at 1039 (citations omitted).

III. APPLE’S MOTION TO DISMISS

Apple moves to dismiss all of Plaintiffs’ claims' on Article III standing grounds, as well as each of Plaintiffs’ substantive claims for failure to state a claim upon which relief can be granted. Because Article III standing is a threshold jurisdictional question, the Court will first address Apple’s Rule 12(b)(1) motion to dismiss on the grounds that Plaintiffs lack Article III standing. See Steel Co. v. Citizens for a Better Env., 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

A. Article III Standing

1. Legal Standards

To establish Article III standing, a plaintiff in federal court must meet three requirements. First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

The standing requirements are not pleading requirements. Rather, “each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id. at 561, 112 S.Ct. 2130. Nevertheless, “[a]t the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice.” Id. A “court’s obligation to take a plaintiff at its word at that stage in connection with Article III standing issues is primarily directed at the injury in fact and causation issues, not redressability.” Levine v. Vilsack, 587 F.3d 986, 996-97 (9th Cir.2009) (citing Lujan, 504 U.S. at 561, 112 S.Ct. 2130). “[I]t is within the trial court’s power to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiffs standing.” Worth v. Seldin, 422 U.S. 490, 501- 02, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

In addition, even when a plaintiff is able to establish Article III standing, prudential considerations may preclude the exercise of federal jurisdiction. A plaintiffs claim must fall within the “zone of interests” sought to be protected by the statute or constitutional provision in question. Bond v. United States, — U.S. -, 131 S.Ct. 2355, 2366-67, 180 L.Ed.2d 269 (2011). That claim must be based on the plaintiffs own legal rights and interests rather than the legal rights or interests of third parties. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 15 n. 7, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). And the injury must be individualized, or confined to a discrete group; courts will not adjudicate “ ‘abstract questions of wide public significance’ ” amounting only to “ ‘generalized grievances.’ ” Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 474-75, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (quoting Worth, 422 U.S. at 499-50, 95 S.Ct. 2197).

Finally, in a class action, it is not sufficient for any named plaintiff to rely on the injuries suffered by the class to satisfy Article III standing requirements; each named plaintiff must meet the standing requirements, including satisfactorily alleging that each named plaintiff suffered “non-speculative injury.” Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir.2003).

2. Injury-in-Fact and Causation

Despite the presence of fifteen' named Plaintiffs and fifteen Defendants, and the assertion of twenty-six causes of action, Plaintiffs’ case is rather simple. Plaintiffs allege that Apple sold them devices that made it possible for third parties to access and copy Plaintiffs’ address books without their knowledge. Plaintiffs allege, with respect to Apple, that they suffered injury in the form of having overpaid for their iDev-ices, because they would have paid less for their devices, or not purchased them at all, if Apple had disclosed that it had failed adequately to secure the devices from the alleged intrusion.

In denying Apple’s second motion to dismiss Plaintiff Pirozzi’s claims on standing grounds, this Court observed that her alleged overpayment injury satisfied Article Ill’s injury-in-fact requirement because “palpable economic injuries have long been recognized as sufficient to lay the basis for standing.” Sierra Club v. Morton, 405 U.S. 727, 733-34, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); see also Comm. v. Reno, 98 F.3d 1121, 1130 (9th Cir.1996) (“Economic injury is clearly a sufficient basis for standing.”). See Pirozzi v. Apple, Inc., 966 F.Supp.2d 909, 917 (N.D.Cal.2013) (“Pirozzi II”). Judge Gonzalez Rogers previously reached the same conclusion. See Pirozzi v. Apple, Inc., 913 F.Supp.2d 840, 847 (N.D.Cal.2012) (“Pirozzi I”) (“Apple’s arguments misconstrue the nature of Plaintiffs allegations .... Overpaying for goods or purchasing goods a person otherwise would not have purchased based upon alleged misrepresentations by the manufacturer would satisfy the injury-in-fact and causation requirements for Article III standing.”).

Nevertheless, Apple argues that Plaintiffs have not satisfied the causation requirement because no Plaintiff has identified the specific representations made by Apple that form the basis of their overpayment theory of liability. The CAC makes the following allegations concerning Apple’s alleged misrepresentations and Plaintiffs’ reliance:

[EJach Plaintiff viewed Apple’s online, in-store, and/or television advertisements. In addition, each Plaintiff relied on Apple’s reputation for safety, cultivated through Apple’s extensive marketing and advertising campaigns. Each Plaintiff purchased an iDevice with the expectation that (i) it would come with a fully functioning App Store, and (ii) that Plaintiff would be able to utilize the “Contacts” function and iDevice apps from the App Store without compromising the security, safety, or control of Plaintiffs iDevice, mobile address book, or other personal and private information. Indeed, each Plaintiff purchased an iDevice with the expectation that he or she would maintain a mobile address book and receive and use additional add-on apps on his or her iDevice. Had any Plaintiff known that iDevices lacked promised features or that Apple designed the iDevices with known vulnerabilities to unauthorized operations from Apple-issued [third-party] apps, Plaintiffs would not have accepted add-on apps from Apple or the App Store and would have paid less for his or her ¡Device. At no time prior to the purchase of Plaintiffs’ ¡Device did Apple warn any Plaintiff that the ¡Device and its data— particularly the Contacts feature and mobile address book — were vulnerable to unauthorized control and dissemination by third-parties.

CAC ¶ 32.

Apple’s standing argument fails to appreciate that “the threshold question of whether plaintiff has standing (and the court has jurisdiction) is distinct from the merits of his claim. Rather, ‘[t]he jurisdictional question of standing precedes, and does not require, analysis of the merits.’ ” Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir.2011) (quoting Equity Lifestyle Props., Inc. v. Cnty. of San Luis Obispo, 548 F.3d 1184, 1189 n.10 (9th Cir.2008)). In other words, it is possible that Plaintiffs may file a civil action “ ‘without suffering dismissal for want of standing to sue,’ ” even though they are “[un]able to assert a cause of action successfully.” In re Facebook Privacy Litig., 791 F.Supp.2d 705, 712 n. 5 (N.D.Cal.2011) (quoting Doe v. Chao, 540 U.S. 614, 624-25, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004)). See also Warth, 422 U.S. at 500, 95 S.Ct. 2197 (standing “in no way depends on the merits of the [] contention that particular conduct is illegal.”); Catholic League for Religious and Civil Rights v. City & Cnty. of San Francisco, 624 F.3d 1043, 1049 (9th Cir.2010) (en banc) (standing analysis may not “be used to disguise merits analysis, which determines whether a claim is one for which relief can be granted if factually true.”).

For the Court to have jurisdiction over Plaintiffs’ claims, their alleged injury must be “ ‘fairly traceable’ ” to Apple, and not the result of the “‘independent action of some third party not before the court.’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41 42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). Plaintiffs’ claims meet that requirement: Plaintiffs allege that Apple misled them through its advertising and failed to disclose material information, that each Plaintiff relied on these misrepresentations or nondisclosures, and that each Plaintiff overpayed for Apple’s products. The requirements to allege standing are not the same as the requirements to plead injury under the substantive law. See Low v. LinkedIn Corp., 900 F.Supp.2d 1010, 1027 (N.D.Cal.2012) (holding plaintiffs satisfied Article III standing even though they had failed to allege reliance on particular representations, and even though their FAL claims were dismissed with prejudice on that basis).

Plaintiffs are also independently able to establish standing through their statutory claims because “[t]he injury required by Article III can exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.’ ” Edwards v. First Am. Corp., 610 F.3d 514, 517 (9th Cir.2010) (quoting Fulfillment Servs. Inc. v. United Parcel Serv., Inc., 528 F.3d 614, 618 (9th Cir.2008)). See also Robins v. Spokeo, Inc., 742 F.3d 409, 412-13 (9th Cir.2014) (“[T]he violation of a statutory right is usually a sufficient injury in fact to confer standing.”). “The scope of the cause of action determines the scope of the implied statutory right.... When, as here, the statutory cause of action does not require proof of actual damages, a plaintiff can suffer a violation of the statutory right without suffering actual damages.” Id. (citation omitted). Apple does not respond to this argument, other than to argue that Plaintiffs cannot establish those substantive claims.

Apple makes several more arguments concerning the merits of Plaintiffs’ claims, including that Plaintiffs have failed to allege their address books were actually uploaded, and that Apple is not responsible for the App Defendants’ conduct. None of these arguments affect the Court’s standing analysis and are better left to the question of whether Plaintiffs have failed to state a claim upon which relief can be granted.

Finally, relying on In re LinkedIn User Privacy Litig., 932 F.Supp.2d 1089, 1094 (N.D.Cal.2013), Apple argues that an overpayment claim cannot survive without an allegation of “something more” than overpaying for a defective product, such as an allegation that the address books were actually stolen. In Linkedln, the court held that, “in cases where the alleged wrong stems from allegations about insufficient performance or how a product functions, courts have required plaintiffs to allege ‘something more’ than ‘overpaying for a “defective” product.’ ” In re LinkedIn User Privacy Litig., 932 F.Supp.2d 1089, 1094 (N.D.Cal.2013) (citing In re Toyota Motor Corp., 790 F.Supp.2d 1152, 1165 n. 11 (C.D.Cal.2011)).

Apple misreads Linkedln and the cases upon which the Linkedln court relied. The deficiency in the Linkedln plaintiffs’ standing was that they were pleading only a difference between what they had been promised by Linkedln and what they had received, i.e., a breach of contract. In re LinkedIn User Privacy Litig., 932 F.Supp.2d 1089, 1094 (N.D.Cal.2013) (“Plaintiffs cannot rely solely on the ‘benefit of the bargain’ theory of economic harm to sufficiently meet the requirements for Article III standing”). They did not allege that they had suffered any other separate injury.

More relevant here is the decision in In re Toyota Motor Corp., 790 F.Supp.2d 1152, 1165 (C.D.Cal.2011), on which the Linkedln court relied. There, the plaintiffs alleged that they relied on Toyota’s “advertisements for Toyota vehicles on television, in magazines, on billboards, in brochures at the dealership, on the Internet, in newspapers, and on banners in front of the dealership,” throughout which “safety and reliability” were a “consistent theme.” Id. at 1161. The plaintiffs also alleged that, had Toyota disclosed the safety defect in its vehicles of which they complained, they would not have purchased their vehicles, or would have paid less for them. Relatedly, they alleged that their vehicles were worth less in the used car market as a consequence of the public revelations concerning the safety defect. The Toyota Motors court rejected many of the - same standing arguments Apple advances here because “once the safety defect is sufficiently and plausibly pled by all Plaintiffs, the economic losses resulting from the defect are readily established: defective cars are simply not worth as much.” Id. at 1163. This was so even though the defect had not manifested in all of the plaintiffs’ vehicles.' As the Toyota Motors court explained,

When the economic loss is predicated solely on how a product functions, and the product has not malfunctioned, the Court agrees that something more is required than simply alleging an overpayment for a “defective” product.... [T]hat “something more” could be allegations based on market forces. It could also be based on sufficiently detailed, non-conclusory allegations of the product defect.

Id. at 1165 n. 11.

Here, the Court finds that Plaintiffs’ allegations concerning the offending feature of the product — design that enables third parties to take address book information without consent — supply the “something more” that is required. Whether Plaintiffs’ product liability claims state a claim upon which relief can be granted is a separate question the Court addresses below.

Separately, Plaintiffs allege injury-in-fact to their property rights in their address books, as distinct from the economic injury of overpayment for their ¿Devices, as support for their common law conversion and trespass claims. The Court discusses this allegation in connection with the App Defendants’ motion to dismiss in more detail infra, Part IV.A. For the reasons discussed in that section, the Court finds that Plaintiffs lack Article III standing based on any injury to their property rights in their address books. For this reason, the Court will dismiss Plaintiffs’ common law claims against Apple for conversion and trespass.

3. Non-Resident Plaintiffs

Apple also argues that the nonresident Plaintiffs lack standing to assert California statutory claims. That argument “conflate[s] two issues: the extraterritorial application of California consumer protection laws (or the ability of a nonresident plaintiff to assert a claim under California law), and choice-of-law analysis.... ” Forcellati v. Hyland’s, Inc., 876 F.Supp.2d 1155, 1160 (C.D.Cal.2012). “Whether a nonresident plaintiff can assert a claim under California law is a constitutional question based on whether California has sufficiently significant contacts with the plaintiffs claims.” Id. (citing Mazza v. American Honda Motor Co., 666 F.3d 581, 589 (9th Cir.2012)). In Mazza, for example, “California ha[d] a constitutionally , sufficient aggregation of contacts to the claims of each putative class member ... because Honda’s corporate headquarters, the advertising agency that produced the allegedly fraudulent misrepresentations, and one fifth of the proposed class members [were] located in California.” Mazza, 666 F.3d at 589. In Forcel-lati the fact that the defendant was alleged to be headquartered in Los Angeles led the court to conclude that “application of California law poses no constitutional concerns.” Forcellati 876 F.Supp.2d at 1160.

Apple’s arguments here were recently rejected by Judge Wilken in another case arising out of Apple’s marketing activities. See In re iPhone 4S Consumer Litig., No. 12-cv-1127-CW, 2013 WL 3829653, at *7-8 (N.D.Cal. July 23, 2013). There, the plaintiffs “alleged that their injuries were caused by Apple’s wrongful conduct in false advertising that originated in California.” Id. at *7. Judge Wilken noted that the presumption against the extraterritoriality of California law does not apply where the misconduct occurs in California. See Wershba v. Apple Computer, Inc., 91 Cal.App.4th 224, 243, 110 Cal.Rptr.2d 145 (2001) (California statutes apply to “non-California members of a nationwide class where the defendant is a California corporation and some or all of the challenged conduct emanates from California.”). Judge Wilken also distinguished In re Apple & AT & T iPad Unlimited Data Plan Litig., 802 F.Supp.2d 1070, 1076 (N.D.Cal.2011), upon which Apple also relies here, because in that case, unlike here, a contractual choice-of-law clause selected the law of each customer’s state of residence. The Court agrees with Judge Wilken’s careful analysis in the iPhone IS decision.

Apple relies heavily on Sullivan v. Oracle Corp., 51 Cal.4th 1191, 1209, 127 Cal.Rptr.3d 185, 254 P.3d 237 (2011), for support. Sullivan concerned an overtime claim asserted under the unlawful prong of the UCL, the predicate offense for which was a violation of the federal Fair Labor Standards Act (“FLSA”). The plaintiffs alleged that the employer had made the decision to mis-classify workers in California. Noting that “the UCL reaches any unlawful business act or practice committed in California,” the court found that “for an employer to adopt an erroneous classification policy is not unlawful in the abstract.” Id. at 1208, 127 Cal.Rptr.3d 185, 254 P.3d 237. Consequently, the court held that the UCL “does not apply to overtime work performed outside California for a California-based employer by out-of-state plaintiffs in the circumstances of this ease based solely on the employer’s failure to comply with the overtime provisions of the FLSA.” Id. Thus, the California Supreme Court’s holding (1) did not undermine the established presumption that nonresident plaintiffs may assert California claims to address unlawful conduct committed in California by a California resident; and (2) was limited to the FLSA overtime pay context because the work is “performed outside California.” Other courts have come to the conclusion, as this Court does, that Sullivan provides no support for the argument that a national class cannot assert California fraud claims against a California corporation for its misleading marketing. See, e.g., Gross v. Symantec Corp., No. 12-cv-154-CRB, 2012 WL 3116158, at *7 n. 10 (N.D.Cal. July 31, 2012); Parkinson v. Hyundai Motor America, 258 F.R.D. 580, 598 (C.D.Cal.2008).

The Court notes that Apple has not argued that the Court should apply the law of each plaintiffs home state to her claims, and the Court does not reach the question of whether it should. The Court only concludes that it is constitutional for the nonresident Plaintiffs to assert California statutory claims against Apple based on Apple’s conduct in California. For this reason, Apple’s reliance on the choice-of-law analysis in In re Sony Gaming Networks & Customer Data Sec. Breach Litig., 903 F.Supp.2d 942 (S.D.Cal.2012), and Frezza v. Google, Inc., No. 12-cv-237-RMW, 2013 WL 1736788, at *5 (N.D.Cal. Apr. 22, 2013), is misplaced. The question of whether the CAC presents a certifiable class under Mazza, and in particular, how a choice-of-law analysis would affect class certification, is a question for another day.

B. Communications Decency Act

Apple moves to dismiss all of Plaintiffs’ claims against it, except those premised on Apple’s alleged misrepresentations, on the ground that the Communications Decency Act (“CDA”), 47 U.S.C. § 230, bars Plaintiffs’ claims. Section 230(e)(1) provides: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Section 230(c)(2) provides:

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in [section 230(c)(1) ].

Pursuant to the Act, an “interactive computer service” is “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” 47 U.S.C. § 230(f)(2). An “information content provider” is “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3).

Congress, enacted these provisions as part of the Communications Decency Act of 1996 “for two basic policy reasons: to promote the free exchange of information and ideas over the Internet and to encourage voluntary monitoring for offensive or obscene material. Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir.2003). “In light of these concerns, reviewing courts have treated § 230(c) immunity as quite robust, adopting a relatively expansive definition of ‘interactive computer service’ and a relatively restrictive definition of ‘information content provider.’ Under the statutory scheme, an ‘interactive computer service’ qualifies for immunity so long as it does not also function as an ‘information content provider’ for the portion of the statement or publication at issue.” Id. at 1123 (footnotes omitted).

Nevertheless, neither section 230(c) nor any other subsection in the CDA “declares a general immunity from liability deriving from third-party content.” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100 (9th Cir.2009). Instead, to determine whether the CDA operates as a bar to civil liability, courts must determine whether “a plaintiffs theory of liability would treat a defendant as a publisher or speaker of third-party content.” Id. at 1101. “[W]hat matters is not the name of the cause of action — defamation versus negligence versus intentional infliction of emotional distress — what matters is whether the cause of action inherently requires the court to treat the defendant as the ‘publisher or speaker’ of content provided by another. To put it another way, courts must ask whether the duty that the plaintiff alleges the defendant violated derives from the defendant’s status or conduct as a ‘publisher or speaker.’ If it does, section 230(c)(1) precludes liability.” Id. at 1101— 02.

Determining whether a defendant is a “publisher” requires further definition of that term. The Ninth Circuit has held that “publication involves reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content.” Id. at 1102. “[A] publisher reviews material submitted for publication, perhaps edits it for style or technical fluency, and then decides whether to publish it.” Id. Despite Plaintiffs’ arguments to the contrary, “it is immaterial whether this decision comes in the form of deciding what to publish in the first place or what to remove among the published material. This is particularly so in the context of the internet, where material can be ‘posted’ and ‘unposted’ with ease.” Id. at 1102 n. 8 (citing Batzel v. Smith, 333 F.3d 1018, 1032 (9th Cir.2003)). Cf. Batzel v. Smith, 333 F.3d 1018, 1032 (9th Cir.2003) (“A distinction between removing an item once it has appeared on the Internet and screening before publication cannot fly []•”)•

By contrast, the CDA does not bar claims against “information content providers.” An entity “that is responsible, in whole or in part, for the creation or development” of the allegedly offending information is not entitled to the CDA’s protection. “Development” refers “not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness.” Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1167-68 (9th Cir.2008). Thus, “providing neutral tools to carry out what may be unlawful or illicit searches does not amount to ‘development’ for purposes of the immunity exception.” Id. at 1169. Nor does inoffensive editing for spelling errors, removing obscenity, or trimming for length. However, “a website operator who edits in a manner that contributes to the alleged illegality — such as by removing the word ‘not’ from a user’s message reading ‘[Name] did not steal the artwork’ in order to transform an innocent message into a libelous one — is directly involved in the alleged illegality and thus not immune.” Id.

Prior to the relation of Plaintiff Pirozzi’s action against Apple to the above-captioned Opperman action, Apple moved to dismiss Pirozzi’s claims pursuant to the same provisions of the CDA.' Judge Gonzalez Rogers denied Apple’s motion on two bases. First, she found that Pirozzi’s fraud and misrepresentation claims against Apple arising out of Apple’s conduct or failure to disclose were “not predicated solely upon Apple’s approving and distributing Apps via its online App Store.” Pirozzi v. Apple Inc., 913 F.Supp.2d 840, 849 (N.D.Cal.2012). Thus, the CDA did not bar those claims. Second, the court held that it was premature to consider the application of the CDA at the pleading stage based on the “scant record” then before the court because “if Apple is responsible for the ‘creation or development of [the] information’ at issue, then Apple functions as an ‘information content provider’ unprotected by the CDA.” Id.

Here, Apple expressly excludes from its CDA argument any application to Plaintiffs’ fraud and misrepresentation claims, in recognition of Judge Gonzalez Rogers’ first conclusion. With respect to her second conclusion, Apple argues that the CAC, which reproduces many of the allegations in Pirozzi and supplements them with others, contains sufficient allegations from which the Court can now conclude that the CDA bars the remainder of Plaintiffs’ claims against Apple. Plaintiffs again maintain that resolution of the CDA issue must await a later stage of the case.

The cases do not describe a one-size-fits all rule for when to apply the CDA. In some cases the applicability of the CDA is “apparent from the face of the complaint”; in others, it is not. Evans v. Hewlett-Packard Co., No. 13-cv-02477-WHA, 2013 WL 5594717, at *3 (N.D.Cal. Oct. 10, 2013) (quoting Goddard v. Google, Inc., 640 F.Supp.2d 1193, 1200 n. 5 (N.D.Cal.2009)). Here, the Court need not await further discovery before addressing Apple’s CDA argument, because the CAC already pleads sufficient conduct to classify Apple as an “information content provider” whose conduct is not protected by the CDA.

For example, Plaintiffs allege that Apple’s “iOS Human Interface Guidelines” encourage data theft. The guidelines are meant to guide developers as they create apps for the App Store. Among the guidelines are several suggestions that do, on their face, appear to encourage the practices Plaintiffs complain of in this case. For example, Apple tells developers, “don’t force people to give you information you can easily find for yourself, such as their contacts or calendar information,” and “[i]f possible, avoid requiring users to indicate their agreement to your [end user license agreement] when they first start your application. Without an agreement displayed, users can enjoy your application without " delay.” CAC ¶ 212 (emphasis omitted). Based on these passages from the guidelines, Plaintiffs allege: “Apple taught Program registrants’ to incorporate forbidden data harvesting functionalities— even for private “contacts” — into their Apps and encouraged Program registrants to design those functions to operate in non-discernible manners that would not be noticed by the iDevice owner. These App Defendants, apparently in accord with Apple’s instructions, did just that' with their identified Apps.” CAC ¶214. Similarly, Plaintiffs allege: “Apple’s Program tutorials and developer sites [] teach Program registrants how to code and build apps that non-eonsensually access, manipulate, alter, use and upload the mobile address books maintained on Apple iDeviees.” CAC ¶ 190.

These allegations target conduct that goes beyond the traditional editorial functions of a publisher, and beyond providing “neutral tools to carry out what may be unlawful or illicit” conduct. Apple’s alleged conduct potentially constitutes contribution to the alleged illegality in a manner that invokes the “information content provider” exception to the CDA’s protections. See Roommates.Com, 521 F.3d at 1167-68. At this juncture, the Court therefore cannot conclude that Plaintiffs’ theories of liability deriving from Apple’s encouragement of the harvesting of contact information without obtaining consent from the user are not barred by the CDA. See, e.g., Swift v. Zynga Game Network, Inc., No. 09-cv-05443-SBA, 2010 WL 4569889, at *4-6 (N.D.Cal. Nov. 3, 2010) (allegation that video game developer encouraged the creation of and consumption of special offer “scams” were sufficient at pleading stage).

C. Misrepresentation Claims

Apple groups as “misrepresentation claims” Plaintiffs’ UCL, FAL, CLRA, and negligent misrepresentation claims. Apple argues that each claim fails as a matter of law because, according to Apple, “not once in the 166-page pleading does a single Plaintiff identify any specific misrepresentation that he or she actually saw and relied upon in purchasing an Apple device.” ECF No. 395 at 23.

Plaintiffs’ misrepresentation claims are subject to Rule 9(b)’s requirement that fraud claims be pleaded with particularity. Plaintiffs’ allegations must therefore include “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, 765 (9th Cir.2007). The purpose of this requirement is to provide the defendant with adequate notice of the claims against it; plaintiffs must allege “ ‘what is false or misleading about a statement, and why it is false.’ ” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.2003) (quoting In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir.1994)).

Plaintiffs must also adequately plead injury and causation. To have standing under the UCL, a plaintiff must have suffered an injury in fact and “lost money or property as a result of such unfair competition.” Hall v. Time Inc., 158 Cal.App.4th 847, 849, 70 Cal.Rptr.3d 466 (2008). The standing requirement is substantially similar in this context for Plaintiffs CLRA and FAL claims. See Kwikset Corp. v. Super. Ct., 51 Cal.4th 310, 322, 120 Cal.Rptr.3d 741, 246 P.3d 877 (2011) (a plaintiff must “establish a loss or deprivation of money or property sufficient to qualify as injury.-in-fact” under the UCL and FAL); Meyer v. Sprint Spectrum L.P., 45 Cal.4th 634, 646, 88 Cal.Rptr.3d 859, 200 P.3d 295 (2009) (“[I]n order to bring a CLRA action, not only must- a consumer be exposed to an unlawful practice, but some kind of damage must result.”). And for negligent misrepresentation claims, a plaintiff must establish detrimental reliance. For all of Plaintiffs’ misrepresentation claims, the parties agree that “[wjithout such reliance, there is no recovery.” Bily v. Arthur Young & Co., 3 Cal.4th 370, 413, 11 Cal.Rptr.2d 51, 834 P.2d 745 (1992).

Nevertheless, “[w]hile a plaintiff must show that the misrepresentation was an immediate cause of the injury-producing conduct, the plaintiff need not demonstrate it was the only cause.” In re Tobacco II Cases, 46 Cal.4th 298, 326, 93 Cal.Rptr.3d 559, 207 P.3d 20 (2009). “Moreover, a presumption, or at least an inference, of reliance arises wherever there is a showing that a misrepresentation was material.” Engalla v. Permanente Med. Grp., Inc., 15 Cal.4th 951, 977, 64 Cal.Rptr.2d 843, 938 P.2d 903 (1997). A misrepresentation is material if a reasonable person “would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question”; materiality is therefore ordinarily a question of fact unless the “fact misrepresented is so obviously unimportant that the jury could not reasonably find that a reasonable man would have been influenced by it.” Id. (quotations and citations omitted).

1. Specific Representations

In many consumer fraud cases, courts require a plaintiff to identify and describe the specific alleged misrepresentations that each plaintiff saw or heard, and upon which each plaintiff relied. Indeed, in granting Apple’s first motion to dismiss Plaintiff Pirozzi’s complaint, Judge Gonzalez Rogers held that Pirozzi’s failure to “provide the particulars of her own experience reviewing or relying upon any” of the misrepresentations identified in her complaint was fatal to her claims. Pirozzi I, 913 F.Supp.2d at 850. This Court denied Apple’s second motion to dismiss based on Pirozzi’s identification of the specific representations she saw and relied upon, which representations are also alleged here. Pirozzi II, 2013 WL 4029067, at *6-7. Apple now argues that the Court’s prior order was based on a misreading of Pirozzi’s allegations and renews its motion to dismiss.

Having again examined Pirozzi’s allegations, the Court now concludes that its prior decision regarding reliance was in error. In her Second Amended Complaint, Pirozzi alleged that Apple’s website contained the same representations discussed here, including the representation that “[a]ll apps run in a safe environment, so a website or app can’t access data from other apps.” Pirozzi II, 2013 WL 4029067, at *7. In its Order, the Court stated: “Plaintiff also alleges that she relied on that statement in making her purchasing decision.” Id. In actuality, however, Pirozzi did not allege that she relied on the statement; rather, she alleged only that she “visited Apple’s website,” not that she read the particular representations she alleged were misleading. Pirozzi v. Apple Inc., No. 12-CV-1529-JST, ECF No. 29 ¶10, 2013 WL 2303402 (filed Jan. 22, 2013). Therefore, Pirozzi’s allegations of reliance were inadequate.

The CAC suffers from the same defect. It repeats the identical allegations made in Pirozzi’s Second Amended Complaint, and repeats the allegation that Pirozzi “viewed the Apple website.” CAC ¶¶ 121-25. In the next paragraph, the CAC further alleges: “Likewise, each of the other Plaintiffs visited Apple’s website.... ” What the CAC fails to do is connect any specific Plaintiff to any specific representation. The Court now concludes, even reading the complaint in the light most favorable to Plaintiffs, that Plaintiffs have failed to allege that any one of them saw any particular representation.

2. Pleading a Long-Term and Extensive Advertising Campaign

Recognizing that the few specific representations relied upon by this Court in denying Apple’s second motion to dismiss Pirozzi’s complaint form a narrow basis upon which to base this action, Plaintiffs now largely rest their misrepresentation claims on a different basis: that Apple allegedly engaged in a long-standing, widespread advertising campaign that created a reputation for safety and reliability. In re Tobacco II, 46 Cal.4th at 328, 93 Cal.Rptr.3d 559, 207 P.3d 20 (“where, as here, a plaintiff alleges exposure to a long-term advertising campaign, the plaintiff is not required to plead with an. unrealistic degree of specificity that the plaintiff relied on particular advertisements or statements”).

The named plaintiffs in In re Tobacco II alleged that the tobacco industry defendants conducted “a decades-long campaign of deceptive advertising and misleading statements about the addictive nature of nicotine and the relationship between tobacco use and disease.” Id. at 306, 93 Cal.Rptr.3d 559, 207 P.3d 20. In concluding that the plaintiffs did not need to identify the specific statements upon which they relied, the California Supreme Court relied in part on a similar decision in Whiteley v. Philip Morris Inc., 117 Cal. App.4th 635, 680-82, 11 Cal.Rptr.3d 807 (2004).

In Whiteley, the California Court of Appeal affirmed a jury verdict in favor of the plaintiff, the husband of a woman who was a smoker and died of lung cancer. The tobacco industry defendants argued on appeal that the plaintiff had failed to present sufficient evidence of reliance to support the verdict. In particular, the defendants argued, as Apple does here, “that the evidence did not show that Whiteley heard any specific misrepresentation or false promise made by either defendant.” They further argued: “ ‘it is not enough that the plaintiff heard the alleged misrepresentation at some unidentified time from some unidentified source. Instead, the plaintiff must identify a specific misrepresentation that was actually communicated to the plaintiff (directly or indirectly).’ ” Id. at 680, 11 Cal.Rptr.3d 807. The Whiteley court expressly rejected that argument and held that the plaintiff “did not have to prove that she saw or heard any specific misrepresentations of fact or false promises that defendants made or that she heard them directly from defendants or their agents. It was sufficient that the statements were issued to the public with the intent that they reach smokers and potential smokers and that Whiteley, as a member of the intended target population, heard them.” Id. at 680-81, 11 Cal.Rptr.3d 807.

Relying on section 533 of the Restatement Second of Torts, the court held that the trial court had correctly instructed the jury on this question as follows: “One who makes a misrepresentation or false promise or conceals a material fact is subject to liability if he or she intends that the misrepresentation or false promise or concealment of a material fact will be passed on to another person and influence such person’s conduct in the transaction involved.... One who makes a misrepresentation or false promise or conceals a material fact with the intent to defraud the public or a particular class of persons is deemed to have intended to defraud every individual in that category who is actually misled thereby.” Id. at 681, 11 Cal.Rptr.3d 807. The Whiteley court affirmed the jury’s verdict in favor of the plaintiff because the tobacco defendants’ statements

were intended to reassure smokers and potential smokers about the health hazards of smoking and to convey that safety message. That was exactly the message Whiteley received. Defendants’ and their agents’ multifarious misrepresentations regarding the unsettled state of knowledge and the unreliability of any link between cigarette smoking and serious disease were made with the intention and expectation that these misrepresentations would circulate among and influence the conduct of all smokers and prospective smokers. They were heard by or passeasd on to Whitel[e]y, who believed them.

Id. at 681-82, 11 Cal.Rptr.3d 807.

While several courts have considered whether to apply Tobacco II so as to relieve an individual plaintiff of the need to plead that she viewed and relied on a specific misrepresentation, the cases in the aggregate do not define any bright line rules. A review of the jurisprudence, however, has led the Court to identify the following factors in determini