Plaintiffs Fight Bid to Dismiss Smartphone Privacy Class Action Lawsuit

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While Samsung Electronics Co., HTC Corp., Carrier IQ Inc., and other companies attempt to dismiss a smartphone privacy multidistrict litigation (MDL), the plaintiffs of these class action lawsuits have pushed back with their own opposing memorandum. In this MDL, a number of telecom companies have been accused of allegedly violating the Wiretap Act by illegally collecting consumer data through individuals’ phones.

According to the defending companies’ motion to dismiss the smartphone privacy class action lawsuit, they claim that the plaintiffs neglected to properly allege that Samsung, HTC, Carrier IQ, and other companies “intercepted contents” from consumers’ electronic communications via phone, as required by the standards of the Wiretap Act.

In their memorandum to push forward with the Wiretap Act class action lawsuit, the plaintiffs argue:

“For purposes of preserving their Federal Wiretap Act claims against defendants’ motion to dismiss, plaintiffs focus on SMS text messages, Internet search terms, user names and passwords, and whatever else may have been contained in or appended to HTTP/S URLs, though in fact the software intercepted much more. These constitute communications that the defendants intentionally intercepted—not only Carrier IQ understood and intended these communications, but so did the device manufacturers. How so? Because as Carrier IQ indicates, in order to effect the most popular installation of its software, n.4, supra, the manufacturers wrote the very software that intercepted, gathered, and passed down these communications for further processing.”

In this Wiretap Act class action lawsuit, the plaintiffs’ core allegations concern a software program allegedly designed and developed by Carrier IQ and later installed by Samsung, HTC, Motorola, LG Electronics, and other companies who then wrote code to use said Carrier IQ software in consumers’ phones. This software allegedly collects and transfers phone consumers’ sensitive data to the various named carriers.

The defendants also claim that this Samsung Wiretap Act class action lawsuit should be tossed from federal court because the plaintiffs did not “allege acquisition of contents of communications that was contemporaneous with their transmission.” However, the plaintiffs argue that they did properly allege interception of electronic communication contents by the companies in the filed smartphone privacy lawsuit.

The plaintiffs do concede that the phrase “in transit” was not present in their Wiretap Act violation class action lawsuit, but have requested that the court give them permission to amend the complaint to rectify the situation.

Additionally, the plaintiffs are challenging the defendants’ arguments to dismiss individual state claims where, the defendants allege, the class action lawsuit would have no standing under the law because of the absence of plaintiffs residing in those states.

The plaintiffs, however, argue that a number of states’ electronic communication interception statutes are stricter than the equivalent federal laws. Thus, the plaintiffs allege that to dismiss the state claims based on a deficiency present in the federal acts and allegations would be improper.

A court hearing to decide the sufficiency of the arguments put forth in the motion to dismiss the Samsung Wiretap Act violation class action lawsuit and the opposing plaintiffs’ memorandum is scheduled to take place on September 18 of this year.

The plaintiffs are represented by Joseph H Malley, Law Office of Joseph H. Malley, PC, Steve W. Berman and Robert F. Lopez of Hagens Berman Sobol Shapiro LLP and Bruce L. Simon, Daniel L. Warshaw and William J. Newsom ofPearson Simon & Warshaw LLP, and others.

The Smartphone Privacy Class Action Lawsuit is In re: Carrier IQ Inc. Consumer Privacy Litigation, Case No. 3:12-md-02330, in the U.S. District Court for the Northern District of California.

UPDATE: On Jan. 15, 2016, the plaintiffs asked for a deadline extension for filing a settlement agreement. In the court document it states that all parties have agreed to the terms of the smartphone privacy class action settlement but were unable to get the signatures needed by Jan. 15. The parties anticipate that by Jan. 22, 2016 all signatures will be collected.  

UPDATE 2: On Jan. 22, 2016, the plaintiffs filed a motion for preliminary settlement approval and class certification in the case In re: Carrier IQ Inc. Consumer Privacy Litigation. Nearly 79 million tablet and smartphone owners will be covered by the proposed deal, which will provide $9 million in monetary relief to affected consumers and certain injunctive relief, if approved.

UPDATE 3: On Mar. 1, 2016, a California federal judge granted preliminary approval of the $9 million smartphone privacy class action lawsuit settlement.

UPDATE 4: On Apr. 6, 2016, the Smartphone Privacy Class Action Settlement is now open! Click here to file a Claim Form or visit www.CarrieriQSettlement.com for more details.

UPDATE 5: On June 23, 2016, consumers in this privacy class action lawsuit against several tablet and smartphone makers urged a California federal court to accept a settlement that would resolve allegations that the companies installed wiretapping software on mobile devices.

UPDATE 6: On Oct. 1, 2018, Top Class Actions viewers started receiving checks from the Smartphone privacy class action settlement worth as much as $417. Congratulations to everyone who file a claim and got PAID!