In November 2017, Judge Edward J. Davila dismissed a major multidistrict litigation accusing Facebook of unlawfully tracking users’ browsing activity across websites while they were signed out of their accounts.1 The plaintiffs originally asserted several common law, tort, and statutory claims. Judge Davila dismissed most of those claims pursuant to earlier motions, leaving only the plaintiffs’ breach of contract claims intact.
The plaintiffs also argued that Facebook’s Help Center pages, including those that state Facebook will not track users while they are signed off, constitute a single “broader document” that is incorporated by reference into the Data Use Policy, which is part of the SRR.3 Judge Davila rejected this argument because, while the Data Use Policy links to some Help Center pages, it does not link to or directly reference any pages containing promises that Facebook will not track users who are logged-out: “[t]he Help Center pages exist independently at different URLs” and “[n]o evidence suggests that a Facebook user who reads one Help Center page has also read, or is even aware of, any of the others.”4 Given the plaintiffs’ failure to identify any contractual promise that Facebook may have violated, Judge Davila dismissed the plaintiffs’ remaining breach of contract claims. Because the plaintiffs failed to adequately revise their complaint after multiple leaves to amend, Judge Davila dismissed the case with prejudice.
Judge Davila’s decision in the Facebook tracking litigation turned on straightforward principles of contract law related to incorporation by reference. His decision is similar to those in numerous consumer class action cases based on alleged misrepresentations about companies’ privacy practices. These cases serve as a reminder that consumer-facing businesses should carefully review help center pages and FAQs that describe their data handling practices and be aware of how user agreements, terms, and policies refer and link to these pages.
1 In re Facebook Internet Tracking Litigation, 2017 U.S. Dist. LEXIS 190819 (N.D. Cal. Nov. 17, 2017).
2 Id. at *17-*18.
3 Id. at *22.