Google Wants Privacy Class Action Lawsuit Killed

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In a motion to dismiss an ongoing class action lawsuit over Google privacy concerns, attorneys for the search giant argued Friday that the lead plaintiff and other parties relied on a contract to which they were not bound, cannot adequately express economic injuries required by California’s Consumer Legal Remedies Act and, further, that their software is not governed by the statute.

The motion concerns a second amended complaint filed by plaintiffs after U.S. District Judge Paul S. Grewal dismissed the Google privacy class action lawsuit in December, ruling that the plaintiffs failed to meet pleading requirements for claims that Google violated privacy laws by aggregating users’ data across various platforms including YouTube, Gmail, Google Plus and Google’s search engine.

Judge Grewal gave plaintiffs a third chance to refile their Google privacy class action lawsuit with amended claims, but warned that their case would be unlikely to survive a third dismissal.

Class action lawyers for the plaintiffs allege that Google’s privacy policies promised that information provided by a user for one service would not be used by another service without the consumer’s consent. In March 2012, however, Google updated its privacy policy to allow it to share users’ information across all Google platforms, including Android devices. Plaintiffs further argued that in sending the data to developers it diminished battery life for Android-powered devices,  and that the lead plaintiff was forced to buy a new phone because of his concerns about changes to the Google privacy policy. The Google privacy changes led to multiple class action lawsuits.

The company noted that the Google privacy policy that is included in the amended complaint was released in 2008, but was superseded by a new one released Jan. 29, 2010, several months before any of the plaintiffs bought an Android smartphone. That policy notes that “if you use an Android-powered device, Google will associate your device ID with your Google Account in order to provide services, such as sync functionality for your Google email and contacts.”

Further, the motion to dismiss the Google privacy class action lawsuit argues that the plaintiffs did not demonstrate that they had relied on either privacy policy. Moreover, it was not necessary to buy a new smartphone as “Mr. Nisenbaum failed to mitigate his damages by replacing the free apps rather than the phone.” Even so, the included apps only provided the user’s name, zip code and email address, and only to developers who had sold products to Android smartphone users.

Courts have already ruled that this amount of data is insufficient to support the idea that it drains battery life and that those pieces of personal identifying information are not considered invasive by reasonable people. Further, the judge in the case had already reviewed the policy and found against a breach of contract claim as the “policy plainly includes a provision for the commingling of PII across Google products.”

Google further argues that the reliance on the Consumer Legal Remedies Act also leads to a fatal flaw, as a federal court ruled in litigation involving the competing iPhone that “sale or licensing of software is not a ‘good or service’ subject to the CLRA.” The company provides the software to companies including HTC that actually make the devices, but they should not be targeted because of prior precedent, according to Google’s legal team.

Finally, in making fraud claims which should include a variety of details, the “Plaintiffs omit the most basic facts on which their claims rely: the identity and terms of contracts they claim are breached, the formation of those alleged contracts, the reliance they claim, and even such basic facts as what devices and Apps they purchased, when, and from whom.”

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

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

UPDATE: On July 21, 2014, Judge Paul S. Grewal trimmed the Google privacy class action lawsuit, but did not dismiss it in its entirety. 

UPDATE 2: 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.