Fertility app maker Flo Health faces consolidated privacy lawsuit

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REUTERS/Tatyana Makeyeva

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  • Flo Health sees new complaint in California federal court
  • App developer settled with FTC in January
  • "Diverse slate" vies for interim co-lead counsel

(Reuters) - Flo Health Inc is facing a consolidated class action complaint accusing the period and fertility-tracking app developer of sharing users' sensitive health information with third parties without app users' knowledge.

The lawsuit, filed on Thursday in California federal court, also named the alleged third parties - Facebook Inc, Alphabet Inc's Google, and data analytics companies Flurry Inc and AppsFlyer Inc - as defendants.

Flo Health, through its counsel from Dechert, declined on Friday to comment on the pending litigation. Lawyers for Facebook, Google, Flurry and AppsFlyer, of the law firms Gibson, Dunn & Crutcher, Willkie Farr & Gallagher, Hunton Andrews Kurth and Latham & Watkins, respectively, didn't immediately respond to requests for comment.

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The newly filed action brings together plaintiffs from seven proposed class actions filed against Flo Health earlier this year. The first complaint stemming from the alleged unlawful data disclosure came after the U.S. Federal Trade Commission announced a settlement with Flo Health in January.

Users of the women's health app hand over personal information to Flo Health, including "intimate details" about sexual health and menstrual cycles, among other things, to use the app, the complaint said.

Flo Health allegedly violated users' privacy by disclosing that information to third parties through software development kits (SDKs) incorporated into its app, despite the company's privacy policies and "public assurances" that it would not share data, the complaint said. In using the third parties' SDKs, Flo Health transmitted the personal information back to other defendants, which allegedly "knew that the data collected and received from Flo Health included intimate health data" but didn't stop that because the data is "vital to their business," such as for marketing and data analytics purposes, according to the complaint.

The lawsuit asserts several claims against Flo Health, including invasion of privacy, breach of contract, and violation of the federal Stored Communications Act. The plaintiffs accuse the other companies of "aiding and abetting" Flo Health's alleged practices, among other claims, including a Federal Wiretap Act claim against Facebook, Google and Flurry.

Plaintiffs' counsel filed a separate motion Thursday seeking the appointment of lawyers from three firms as interim co-lead counsel. The filing touts the data privacy, consumer protection and complex class action experience of the proposed leaders, and highlights the proposed structure as reflecting a "diverse slate of attorneys."

Carol Villegas of Labaton Sucharow, Diana Zinser of Spector Roseman & Kodroff and Christian Levis of Lowey Dannenberg are seeking the leadership roles.

The proposed leaders "embody the diversity necessary to vindicate claims for women whose private intimate health data was disclosed without authorization," the lawyers wrote. Villegas, Zinser and Levis didn't immediately respond to requests for comment.

The case is Frasco v. Flo Health Inc, U.S. District Court for the Northern District of California, No. 3:21-cv-00757-JD.

For the plaintiffs: Carol Villegas of Labaton Sucharow, Diana Zinser of Spector Roseman & Kodroff and Christian Levis of Lowey Dannenberg

For Flo Health: Brenda Sharton of Dechert

For Facebook: Ashley Rogers of Gibson, Dunn & Crutcher

For Google: Benedict Hur of Willkie Farr & Gallagher

For Flurry: Ann Marie Mortimer of Hunton Andrews Kurth

For AppsFlyer: Melanie Blunschi of Latham & Watkins

Read more:

Women's health app maker settles FTC claims over data disclosure

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Sara Merken reports on privacy and data security, as well as the business of law, including legal innovation and key players in the legal services industry. Reach her at sara.merken@thomsonreuters.com