Corallo v. NSO Group Technologies Limited

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 FRANCESCO CORALLO, 10 Case No. 22-cv-05229-RS Plaintiff, 11 v. ORDER RE PENDING MOTIONS 12 NSO GROUP TECHNOLOGIES 13 LIMITED, et al., 14 Defendants.

15 16 Plaintiff Francesco Corallo is a native of Italy and a naturalized citizen of the Netherlands, 17 who resided in Sint Maarten in the Dutch Caribbean at the time of the events alleged in the 18 complaint in this action. Corallo describes himself as a successful businessman with interests 19 across the Caribbean and in Italy. Defendants NSO Group Technologies Limited and its sole 20 shareholder Q Cyber Technologies Limited (collectively “NSO”) are Israeli companies, who 21 allegedly develop, market, and distribute “highly invasive surveillance technology or spyware and 22 related products and services, including software called Pegasus and a “security exploit” known as 23 FORCEDENTRY.” 24 Corallo owned an Apple iPhone and stored data in an iCloud account. He alleges NSO 25 used the FORCEDENTRY exploit to deploy the Pegasus software on devices of Apple customers 26 on behalf of NSO’s governmental clients, including Italy and the Netherlands. Corallo asserts 27 Apple notified him that his iPhone and iCloud data had been compromised by such “hacking.” In 1 Apple, Inc. NSO has moved to dismiss for lack of personal jurisdiction and on forum non 2 conveniens grounds, and for failure to state a claim. Apple moves to dismiss for failure to state a 3 claim. 4 Corallo’s opposition to NSO’s motion for dismissal for lack of personal jurisdiction relies 5 heavily on WhatsApp Inc. v. NSO Grp. Techs. Ltd., 472 F. Supp. 3d 649 (N.D. Cal. 2020), in 6 which California-based plaintiffs sued NSO for their systems to deploy the Pegasus software to 7 their users’ devices. The WhatsApp court denied NSO’s motion to dismiss for lack of personal 8 jurisdiction. Id. at 678. Corallo, however, has not made a compelling showing that WhatsApp 9 supports specific personal jurisdiction here, where he is not a California resident and few of the 10 considerations discussed in WhatsApp apply. 11 Even assuming specific personal jurisdiction over NSO might exist on the facts of this 12 case, the doctrine of forum non conveniens may compel dismissal. NSO did not originally move 13 for dismissal on forum non conveniens grounds in the WhatsApp case. In September of this year, 14 however, NSO brought such a motion contending “recent events” support a conclusion that claims 15 relating NSO’s deployment of Pegasus cannot be litigated here. That motion is presently set to be 16 heard on November 9, 2023. At least some of the “recent events” presented by NSO in WhatsApp 17 may postdate the forum non conveniens briefing in this case. 18 In the event an order issues in WhatsApp granting the motion to dismiss on forum non 19 conveniens grounds by December 29, 2023, Corallo may file a supplemental brief, within ten days 20 thereafter, not to exceed 15 pages, setting out any arguments he may have as to why this action 21 should not similarly be dismissed on forum non conveniens grounds. Any such brief may include 22 additional argument as to why Corallo contends personal jurisdiction would be appropriate here, 23 absent forum non conveniens issues, notwithstanding the fact that he, unlike the WhatsApp 24 plaintiffs, is not based in California. NSO may then file a supplemental response, also not to 25 exceed 15 pages, within one week thereafter. The matter will then be resubmitted for decision 26 without further briefing or argument, unless otherwise order. The motion to dismiss filed by 27 defendant Apple, Inc. remains submitted. If no ruling is entered on the forum non conveniens 1 motion in WhatsApp, a further order will issue in this case regarding any further briefing that may 2 || be warranted. 3 Corallo previously filed an overlong reply brief simultaneously with motion for leave to 4 || exceed page limits. Without condoning that practice or implying that the additional pages were 5 necessary, the retroactive motion to extend page limits (Dkt. No. 102) is granted. The initial Case 6 Management Conference is continued to January 25, 2024, with a joint statement to be filed one 7 week in advance. 8 9 || ITISSO ORDERED. 10 11 Dated: October 17, 2023 a 12 RICHARD SEEBORG 13 Chief United States District Judge

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Z 18 19 20 21 22 23 24 25 26 27 28 CASE No. 22-cv-05229-RS