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Plaintiffs Ask Court to Ax Affirmative Defenses in Flo Health User Privacy Suit

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On Monday, the plaintiffs litigating against Flo Health Inc. argued that the court should strike many of Flo’s 30 affirmative defenses because they are improperly pleaded or fail to provide proper notice. 

The 2021 case alleges that Flo’s app collects menstrual cycle and pregnancy information yet illegally shares this data with third parties, including co-defendants Meta Platforms and Google, in violation of state and federal law. Private suits brought by app users streamed in after the FTC settled with the company on agreement that it make data collection and usage concessions and disclosure modifications.

The defendants answered the plaintiffs’ amended complaint in separate filings following the court’s decision on their motions to dismiss. Judge James Donato’s June ruling permitted the vast majority of claims to proceed, including the plaintiffs’ invasion of privacy, unfair business practice, and computer hacking claims against Flo.  

The plaintiffs now contend that Meta, Google, and Flo asserted 114 overlapping affirmative defenses that are improper for a number of reasons. The motion notes that though the plaintiffs were able to resolve their differences with Meta and Google, Flo purportedly refused to amend its answer, prompting the instant motion.

According to the plaintiffs, a number of Flo’s defenses “merely deny or attempt to rebut Plaintiffs’ allegations,” and as such, are not truly affirmative defenses. By way of example, the filing points to defenses that deny elements of the plaintiffs’ claims such as lack of standing, and “contractual defenses,” including “no damages” and “no liability.”

Others are purportedly invalid because they do not seek to defeat the plaintiffs’ claims, but only to limit their damages, including unconstitutionally punitive damages, “double recovery,” and “unauthorized remedies.” 

The plaintiffs add that some fail to identify which facts or claims they pertain to, thereby depriving them of fair notice. In turn, the app users ask the court to strike Flo’s  consent, unjust enrichment, waiver, estoppel, laches and unclean hands defenses as lacking factual or other support.

Labaton Sucharow LLP and Lowey Dannenberg P.C. are interim class counsel. Flo is represented by Dechert LLP.

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