Google Wants Class Action over Minor In-App Purchases Dismissed

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Google Inc. has filed a motion to dismiss a class action lawsuit accusing the company of enticing children to spend money on in-app game purchases without their parents’ consent, arguing that a contract between the plaintiff’s children and Google did not exist, and therefore, the plaintiff had no standing to disaffirm this contract.

Plaintiff Ilana Imber-Gluck alleges in the Google in-app purchase class action lawsuit that many of the games Google sells for use on Android phones and tablets are free or only two or three dollars to buy, and all of these require that their parents sign in to their Google account to buy or download, constituting parental permission. But following this sign-in, when the parent presumably hands the device to their child to use, the minor children can, in the next 30-minute window, make in-app purchases of items like “coins” and other in-app currency without a password or an on-screen prompt for parental permission.

On May 5, Google asked the federal judge in the Northern District of California to dismiss the Google in-app purchase class action lawsuit, arguing on a number of points. First, that the claim for declaratory judgment is based on the idea of a contract between Google and Imber-Gluck’s children. The motion states she “lacks standing to disaffirm a contract with her minor children and, in the alternative, because no such contract with her minor children exists” because “the right to disaffirm the alleged contract (if it did exist) would belong to the minor personally and not plaintiff. Plaintiff’s suit is brought in her name only; therefore, her claim for disaffirmance of her minor child’s contract fails.”

Using this reasoning, Google argued in its motion against the class action lawsuit, Imber-Gluck “does not allege that her children have Google Play accounts or have been billed for any of their alleged purchases. A minor’s use of a parent’s mobile device and a parent’s Google Play account in a manner that results in charges made to the parent’s Google Play account does not create a contract between Google and the minor; therefore, there is no contract with a minor to be disaffirmed.”

Google also noted in its claim that “it is uncontroverted that Plaintiff’s agreement with Google with regard to purchases made from the Google Play Store expressly provides that she is responsible for the activity that happens on or through her Google Account.”

Google argued on several other bases that the in-app purchase class action lawsuit should be dismissed, including that her claim for unjust enrichment and restitution should be vacated because no such independent claim exists under California law. On the claim for breach of the duty of good faith and fair dealing, Google argued “the implied covenant of good faith and fair dealing cannot be used to negate express terms of the parties’ contract, and the contract here provided that Plaintiff was responsible for all activity relating to her Google account.” In addition, the motion went on, the covenant cannot be applied to duties outside the contract between Google and Imber-Gluck, and there is no referrance to the “intent to purchase.”

Google also moved to dismiss the proposed class action lawsuit under California’s Unfair Competition Law and Consumer Legal Remedies Act, because Imber-Gluck’s claims were that the gaming application was free, and she therefore alleged affirmative fraudulent representation; but the game she detailed in the complaint, Marvel Run Jump Smash, is not free.

Imber-Gluck is represented by James Patterson of Patterson Law Group, Todd Carpenter of Carpenter Law Group, Benjamin Sweet and Edwin Kilpela Jr. of Del Sole Cavanaugh Stroyd LLC and Shannon Carson and Patrick Madden of Berger & Montague PC

The Children’s Google In-App Purchasing Class Action Lawsuit is Ilana Imber-Gluck v. Google Inc., Case No. 5:14-cv-01070, in the U.S. District Court for the Northern District of California.

UPDATE: On April 3, 2015, a California federal judge denied Class certification to the Google in-app purchase class action lawsuit because the issue has already been resolved in a settlement with the Federal Trade Commission.