Frasco v. Flo Health Inc.

On October 12, 2021, Judge James Donato of the United States District Court for the Northern District of California appointed Labaton Keller Sucharow as co-lead counsel in a consolidated data privacy class action against fertility app developer Flo Health Inc (Flo Health), and Meta (Facebook), Google, Flurry, and AppsFlyer.

Flo Health is the developer of an app that tracks sensitive women’s health information including detailed information about women’s menstrual cycles, sexual health, and pregnancy.  The action alleges that Flo Health allowed Facebook, Google, and others to surreptitiously intercept confidential women’s health information from users’ app accounts without their consent.

In June 2022, Judge James J. Donato released Defendant AppsFlyer from the case citing insufficient evidence that the advertiser had "used the data collected from the Flo App for advertising and marketing purposes," allowing claims against other Defendants to proceed.  In February 2024, after the close of fact discovery, Google moved for summary judgment contending that it should also be removed from the case on the grounds the case lacked evidence that it “receive[d] any sensitive health information from Flo” or “use[d] the data it received from the Flo App for research, development, marketing, or advertising purposes.”  On September 23, 2024, Judge Donato denied Google’s motion for summary judgment in large part, stating “Google goes too far.”  Notably, Judge Donato (1) clarified the law on whether and to what extent “use” of data is a necessary showing; (2) ruled in favor of the Plaintiffs’ California Comprehensive Computer Data Access and Fraud Act, California Invasion of Privacy Act, and Wiretap Act claims; and (3) outlined issues of material fact to be decided by a jury.

The case, Frasco v. Flo Health Inc, No. 3:21-cv-00757-JD (N.D.C.A.), consolidates multiple lawsuits filed against the company in 2021, following a settlement between Flo Health and the Federal Trade Commission arising from similar claims.