NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 08 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In re: FACEBOOK PRIVACY No. 12-15619
LITIGATION,
D.C. No. 5:10-cv-02389-JW
MIKE ROBERTSON, as representative of
the class, MEMORANDUM*
Plaintiff - Appellant,
v.
FACEBOOK, INC., a Delaware
corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted January 17, 2014
San Francisco, California
Before: ALARCÓN, TALLMAN, and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Plaintiffs appeal the district court’s dismissal with prejudice of their state
law claims for breach of contract and fraud, as well as their claims under
California’s Unfair Competition Law (UCL) and Consumer Legal Remedies Act
(CLRA). We have jurisdiction under 28 U.S.C. § 1291.1
Plaintiffs allege that the information disclosed by Facebook can be used to
obtain personal information about plaintiffs, and that they were harmed both by the
dissemination of their personal information and by losing the sales value of that
information. In the absence of any applicable contravening state law, these
allegations are sufficient to show the element of damages for their breach of
contract and fraud claims. Cf. Gautier v. Gen. Tel. Co., 44 Cal. Rptr. 404, 406
(Cal. Ct. App. 1965) (holding that breach of contract requires damage to the
plaintiff); Lazar v. Sup. Ct., 909 P.2d 981, 984 (Cal. 1996) (stating that fraud
requires damage to the plaintiff). Therefore, the district court erred in dismissing
these state law claims.
We affirm the district court’s dismissal of plaintiffs’ UCL claim because
plaintiffs failed to allege that they “lost money or property as a result of the unfair
competition.” Cal. Bus. & Prof. Code § 17204; see also Folgelstrom v. Lamps
1
In a published opinion filed concurrently with this memorandum, we affirm
the district court’s dismissal of plaintiffs’ claims under the Stored Communications
Act, 18 U.S.C. § 2702. Robertson v. Facebook, ___ F.3d ___ (9th Cir. 2014).
2
Plus, Inc., 125 Cal. Rtpr. 3d 260, 266–67 (Cal. Ct. App. 2011). We also affirm the
district court’s dismissal of plaintiffs’ claim under the CLRA because plaintiffs
failed to allege that they obtained anything from Facebook “by purchase,” or by a
“consumer transaction.” Schauer v. Mandarin Gems of Cal., Inc., 23 Cal. Rptr.
233, 241 (Cal. Ct. App. 2005); Cal. Civ. Code §§ 1761(d), 1780(a).
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
3