Lopez v. Apple: When an Alleged Injury is Too Speculative to Confer Article III Standing
A recent decision from the Northern District of California — Lopez, et al. v. Apple — highlights the continued impact of the U.S. Supreme Court’s decision in Spokeo, Inc. v. Robins in shaping Article III standing jurisprudence for consumer cases. Consistent with our prior reporting on Ninth Circuit constitutional standing issues, courts in the Ninth Circuit remain vigilant, even at the pleading stage, in rejecting cases where the plaintiff’s theory of harm, as alleged, is speculative, and therefore neither “concrete” nor “actual or imminent.”
In Lopez, Plaintiffs filed putative consumer class action claims against Apple for violation of federal and state privacy laws. Plaintiffs owned Apple devices, namely, Apple iPhones, which came pre-installed with Siri, an artificial intelligence-based virtual assistant that allows individuals to use their voice to ask questions and give instructions. On July 26, 2019, The Guardian published an article reporting that Apple had intercepted, through Siri, and disclosed private consumer conversations without any user consent. The article described instances where Siri was routinely triggered unintentionally, and also reported that a “small portion” of Siri recordings, both deliberate and accidental, were sent to third-party contractors for evaluation. Consequently, according to The Guardian article, the third-party contractors were sometimes exposed to “private discussions between doctors and patients, confidential business deals, and sexual encounters.” Plaintiffs’ privacy law claims were based on the assertions in this article, rather than first-hand knowledge arising from their personal experience with their iPhones.
In granting Apple’s motion to dismiss, District Judge White found that Plaintiffs failed to meet the “irreducible minimum” of Article III standing because the alleged harm to them was overly speculative for a number of reasons. First, other than conclusory statements, Plaintiffs alleged no facts to suggest that their own private communications were intercepted. The Guardian article did not suggest that all Apple devices contained the Siri accidental trigger. Instead, it primarily focused on frequency of the defect in the Apple Watch and the HomePod speakers, neither of which were owned by the Plaintiffs. Moreover, because the article indicated that only a “small portion” of accidental Siri activations were sent to third-party contractors for review, it was too speculative for Plaintiffs to believe any of their private communications were disclosed. These variables created an “attenuated chain of possibilities” insufficient to plausibly allege an injury in fact and show that the Article III standing requirement was met. As the court explained, “[a]bsent factual allegations regarding the rate of accidental triggers on devices that Plaintiffs actually own, as well as their particular use of those devices in contexts where they had a reasonable expectation of privacy, the injury remains too speculative for Article III standing.”
The Lopez court’s firm requirement for a concrete or imminent injury fairly traceable to the defendant’s conduct is also instructive in the class action context. The court’s focus on the conjectural nature of Plaintiffs’ claims rightfully foreshadows potential typicality, adequacy, and predominance concerns that would have likely plagued a potential class. The court’s decision signals that even in a more consumer-friendly venue like the Ninth Circuit, “fishing expeditions,” like those where the plaintiff fails to allege basic foundational facts, are not tolerated and will be dismissed.
