A federal district court recently denied remand of a proposed class action against Twitter, Inc., rejecting plaintiff’s arguments, including that the removal was improper because his claim was limited to a “statutory damages remedy” that does not confer Article III standing under TransUnion LLC v. Ramirez. See Order Denying Plaintiff’s Motion to Remand, Morgan v. Twitter, Inc., No. 2:22-cv-00122-MKD (E.D. Wash. May 5, 2023).
The plaintiff filed suit in Washington state court under the state Criminal Profiteering Act, alleging that Twitter (1) unlawfully obtained his and other purported class members’ cell phone numbers that were used to register with Twitter and (2) illegally profited by selling that information to third-party advertisers. Twitter removed the case to federal court under the Class Action Fairness Act (“CAFA”), and the plaintiff moved to remand.
The court first rejected the plaintiff’s argument that removal was improper because the claim was limited to a “statutory damages remedy” that did not constitute a concrete injury in fact sufficient for Article III standing under TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021). The court observed that the state statute, like its federal equivalent, the Telephone Records and Privacy Protection Act (“TRPPA”), codified “the substantive privacy interests in context-specific situations regarding the unauthorized dissemination or sale of telephone records.” As such, the court determined that the plaintiff’s claim is closely analogous to the common law tort of disclosure of private information, which has been “traditionally recognized as providing a basis for lawsuits in American courts.” The court further concluded the plaintiff alleged facts sufficient to establish causation and redressability for standing purposes.
The court also rejected the plaintiff’s claim that the removal was untimely, reasoning that the 30-day window provided under 28 U.S.C. § 1446(a) was never triggered because the complaint did not provide facts sufficient to determine removability by estimating the number of individuals the class would encompass. The court pointed out that it was Twitter that conducted an analysis of its own business records—despite not being required to do so—and confirmed the class was likely large enough to satisfy the CAFA requirements. Lastly, the court rejected the plaintiff’s argument that Twitter was judicially estopped from arguing for Article III standing based on Twitter’s argument in the motion to dismiss stage of a different case, Gray v. Twitter, Inc., No. 20-cv-01389-LK (W.D. Wash. 2020). The court found that Twitter’s acknowledgement that the plaintiff alleged sufficient facts to confer Article III standing in this case did not materially contradict its prior position in Gray.