On Oct. 25, 2024, the United States District Court for the Northern District of California considered a motion to dismiss a putative nationwide class action for failure to state a claim under Massachusetts General Laws c. 93A. 

In A.J. v. LMND Med. Grp., Inc., plaintiffs alleged that defendant surreptitiously collected and disclosed confidential medical information associated with plaintiffs’ individual identifying information to third parties via trackers embedded in defendant’s website. 

Plaintiffs asserted this disclosure violated c. 93A based on a theory of affirmative misrepresentation and omission by defendant. The court dismissed the c. 93A claim based on an affirmative misrepresentation for failure to include facts in the Third Amended Complaint from which it could be inferred that plaintiffs saw any specific misrepresentation in defendant’s privacy policies. Those allegations were required to establish that an alleged misrepresentation by defendant caused their injuries. 

However, the court declined to dismiss the c. 93A claim based on a theory of omission. Under that theory, plaintiffs alleged that defendant failed to disclose its purported collection and disclosure of their private information. Plaintiffs further alleged that had they been notified of such collection and disclosure, they would not have disclosed their information to defendants. The court found these allegations sufficient to plausibly plead that defendant failed to disclose facts that would likely have influenced a reasonable consumer’s use of the website. Plaintiffs’ allegation that the targeted advertisements caused them mental distress also adequately alleged an injury caused by the omission. The implication that advertisers were aware of plaintiffs’ medical conditions and associated fear that their friends, family, or colleagues might see the advertisements and learn of sensitive and confidential health issues raised an inference of injury preventing dismissal of the c. 93A claim.