In late September, plaintiffs announced details regarding Google LLC’s (“Google”) and women’s health app developer, Flo Health Inc.’s (“Flo”) proposed settlements to resolve a class action lawsuit stemming from the Flo app’s allegedly unlawful sharing of health data with Google and others through online tracking technologies.

As part of the proposed settlements, Google agreed to pay $48 million and Flo agreed to pay $8 million, for a combined $56 million to resolve plaintiffs’ claims against these two entities.

Background

Plaintiffs filed a proposed class action in 2021, alleging that Google, Flo, and other entities violated, among other laws, the California Invasion of Privacy Act (“CIPA”) and the California Confidentiality of Medical Information Act (“CMIA”).  Plaintiffs alleged that Flo improperly incorporated software development kits that shared menstruation and pregnancy information along with unique identifiers to third parties, like Google, without obtaining users’ consent and despite representations that users’ information would remain private.  Plaintiffs brought their proposed class action after Flo settled with the FTC to resolve allegations related to the same data handling practices.

Settlements

Both Flo and Google have reached settlements with the plaintiffs.  If the settlements are approved by the court, the following terms will apply:

• Google settlement: Google settled before the case went to trial.  As previewed above, as part of the settlement Google agreed to establish a $48 million dollar fund that will pay members of the certified class, i.e., all Flo app users who entered menstruation or pregnancy information into the app between Nov. 1, 2016, and Feb. 28, 2019.  Claimants who can demonstrate that they live in California will receive twice the pro rata share of other claimants.  Google did not admit liability as part of the settlement.

• Flo settlement: Flo settled in the midst of trial.  Flo agreed to provide $8 million to the settlement fund for the certified class.  Most of the other terms of the Flo settlement resemble those in the Google settlement.  For example, Flo agreed to provide California residents twice the pro rata share of other claimants.  Flo also did not admit to liability.  In a departure from the Google settlement, Flo agreed to display on the landing page of its website a “prominent notice about Flo’s commitment to privacy, along with a prominent link to its Privacy Policy, in large font” for one year once the settlement becomes final. 

Key Takeaways

Overall, consumer health apps, and in particular menstrual and ovulation trackers, face increased scrutiny by the plaintiffs’ bar and, in some cases, state and federal regulators.  Raising the stakes, the statutes under which plaintiffs bring suit, like CIPA and the CMIA, often provide for large statutory penalties imposed on a per violation basis, which can greatly increase claimed potential damages.