News and Analysis

A settlement has been finalized to resolve a litigation against Flo Health, Inc., Google LLC, and Flurry, Inc., over the use of tracking code on Flo Health’s fertility tracking app. Under the terms of the settlement, the defendants will pay almost $60 million to cover legal costs, expenses, and benefits for the plaintiffs and class members.
The Flo Health app is one of the most popular health and wellness apps and has over 38 million monthly users. Prior to using the app, users are asked a series of personal questions about their general, sexual, and gynecological health and menstrual cycles. Further questions are asked as use of the app continues, with the answers used to provide tailored health and wellness advice. Users are told that their information will remain private and confidential and will not be shared with any third parties unless consent is provided, yet code within the app (software development kits) shared that data with the defendants, without the knowledge or consent of app users.
Several lawsuits were filed against Flo Health and the other defendants, which were consolidated into a single action due to the actions having overlapping claims – Erica Frasco, et al v. Flo Health, Inc., Meta Platforms, Inc., Google, LLC, and Flurry, Inc. The lawsuit alleged common law invasion of privacy – intrusion upon seclusion, invasion of privacy, violation of the California Constitution, breach of contract, breach of implied contract, unjust enrichment, and violations of the Stored Communications Act, California Confidentiality of Medical Information Act, Cal. Bus & Prof. Code, and the comprehensive Computer Data Access and Fraud Act.
Meta Platforms Inc. was also a named defendant; however, Meta chose not to settle, and the case proceeded to a jury trial. The jury sided with the plaintiffs and found that Meta was in violation of the California Invasion of Privacy Act. Meta Platforms intends to file an appeal. While the settlement was announced in July, the details have only recently been provided to Judge James Donato in the U.S. District Court for the Northern District of California, San Francisco Division. Under the terms of the settlement, $59.5 million will be paid by the defendants: Google has agreed to pay $48 million, Flo Health will pay $8 million, and Flurry will pay $3.5 million. Flo Health has also committed to ensuring app users’ privacy, and will display a prominent notice on its website to that effect for a period of one year following final approval of the settlement.
Attorneys for the plaintiffs will receive one-third of the settlement amount, which will also cover legal expenses, settlement administration costs, and service awards for the eight named plaintiffs. The remainder of the settlement will be used to pay for benefits for the class members. The class consists of all app users who used the app between November 1, 2016, and February 28, 2019.
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