Google Privacy Class Action Lawsuit Moves Forward

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On Monday, a judge denied Google Inc.’s third attempt to dismiss a class action lawsuit that alleges the company violates privacy laws by aggregating user data across its various platforms. In its motion to dismiss the privacy class action lawsuit, Google argued that the plaintiffs lacked standing and failed to substantiate their claims.

Google was successful in dismissing the privacy class action lawsuit twice before, but U.S. Magistrate Judge Paul S. Grewal refused to dismiss it for a third time. “Like Rocky rising from Apollo’s uppercut in the 14th round, Plaintiffs’ complaint has sustained much damage but just manages to stand,” the judge wrote in his order dismissing all but two of the plaintiffs’ claims.

The Google privacy class action lawsuit was filed on behalf of all persons and entities in the United States that obtained a Google account between Aug. 19, 2004 and Feb. 29, 2012, and continued to use the Google account after Google implemented a new privacy policy on March 1, 2012. The new Google privacy policy allowed the company to comingle user data across different Google products and disclose the information to third parties for advertising purposes. According to the class action lawsuit, Google switched to the less restrictive privacy policy without first obtaining user consent.

The class action lawsuit also includes two subclasses of Android device owners. The Android Device Switch Subclass includes individuals and entities that acquired an Android-powered device between May 1, 2010 and Feb. 29, 2012 and switch to a non-Android device after the new Google privacy policy took effect. The Android App Disclosure Subclass includes individuals and entities that have acquired an Android device after Aug. 19, 2004 and downloaded at least one Android app through the Android Market and/or Google Play store.

The amended privacy class action lawsuit charges Google with violations of the California Consumers Legal Remedies Act (CLRA), the Federal Wiretap Act, Stored Electronic Communications Act, California’s Unfair Competition Law, breach of contract and intrusion upon seclusion.

“After running each claim (and subclaim) of each class (and subclass) through the gauntlet of constitutional and procedural hurdles, two claims remain: the App Disclosure Subclass’ breach of contract claim, and the fraudulent prong of the App Disclosure Subclass’ UCL claim,” Judge Grewal said. “Plaintiffs may proceed on these two causes of action alone.”

“It is time for this case to move forward,” the judge concluded. However, he warned that any future dismissals of the Google privacy class action lawsuit would likely be granted without leave to amend the complaint.

The plaintiffs are represented by Mark C. Gardy, James S. Notis, Kelly A. Noto and Charles A. Germershausen of Gardy & Notis LLP; L. Timothy Fisher and Sarah N. Westcot of Bursor & Fisher; and James J. Sabella of Grant & Eisenhofer PA.

The Google Privacy Class Action Lawsuit is In re: Google Inc. Privacy Policy Litigation, Case No. 5:12-cv-01382-PSG, in the U.S. District Court for the Northern District of California.

UPDATE: On May 12, 2015, plaintiffs filed a motion seeking certification of the Google privacy class action lawsuit. A hearing has been scheduled for June 9, 2015.