In Dawn Fregosa v. Mashable, Inc., Case No. 25-cv-01094-CRB the Northern District of California denied defendant Mashable, Inc.’s attempt to certify an interlocutory appeal in the class action lawsuit brought by plaintiff under the California Invasion of Privacy Act § 630, et seq. (“CIPA”). Fregosa alleges that Mashable embedded third-party tracking software on its website that functioned as a “pen register,” collecting routing information such as IP addresses without user consent, in violation of CIPA’s Pen Register Act provisions. After Mashable’s earlier motion to dismiss was denied, the Mashable moved to certify for interlocutory appeal and to stay the proceedings. The court, however, made clear that Mashable failed to meet the high bar required to demonstrate that extradorianry circumstances warranted an interlocutory appeal.
By way of background, typically a party can’t appeal a judge’s decision in a lawsuit until the entire case is over. But in exceptional circumstances, a court can allow an earlier appeal on a specific legal issue if certain conditions are met. This is called an “interlocutory appeal.” To get one, the party asking for it must show: (1) that there be a controlling question of law, (2) that there be substantial grounds for difference of opinion, and (3) resolving the issue now could help end the case sooner. Even if these requirements are met, it’s still up to the judge to decide whether to allow the early appeal. The decision to certify an order for interlocutory appeal is a matter within the court’s discretion—and courts often don’t do this lightly.
In Fregosa, although the court agreed with Mashable on two of the three required prongs—acknowledging that the applicability of CIPA to website tracking technology is a controlling legal question and that an immediate appeal could materially advance the litigation—it rejected the argument that there is a substantial ground for difference of opinion. The court noted that every federal court that has considered similar CIPA claims has rejected Mashable’s interpretation. Mashable cited a few recent California trial court rulings, but the judge dismissed those as neither persuasive nor controlling— “[a]s Judge Lin noted in her own order denying certification on this question, “those opinions are not controlling, even in the California state courts.”
Further the court found Mashable’s issues with the order, such as whether pen registers can capture a calling party’s information or whether parties to the communication are exempted from liability unpersuasive—“mere disagreement with the Court’s conclusion is insufficient to show that there is a substantial ground for difference of opinion.”
The court also found Mashable’s arguments on the novelty of the issue and the potential policy implications for website operators to be overstated, noting that “novelty alone is insufficient” especially when the reasons for differing opinions are not substantial. The court made clear it wasn’t breaking new ground—“In its order on Mashable’s motion to dismiss, the Court was not painting on a blank canvas. It was not the first to favor Fregosa’s interpretation of the Pen Register Act—and certainly not the last.”
Just another case to remind folks that CIPAWorld remains hot and California courts are not backing away from allowing plaintiffs to apply old wiretap laws to newfangled internet technologies.
Xoxo
Queenie
CIPAWorld 