July 23 — Users of Android mobile devices who alleged that Google Inc. commingled user data across its different products and shared the data with third parties contrary to prior privacy promises have only two claims remaining against the Internet giant after a federal district court July 21 dismissed the majority of their claims .
The “Plaintiffs' complaint has sustained much damage but just manages to stand,” Magistrate Judge Paul S. Grewal of the U.S. District Court for the Northern District of California wrote.
Although a heightened risk of future harm doesn't confer standing, some of the plaintiffs have standing based on either the replacement of or battery depletion on their Android devices, the court concluded. But only two claims survived Google's third attempt to dismiss the case—a breach of contract claim and a claim under California's Unfair Competition Law (UCL).
In the U.S., users of Google's Android mobile devices sued the company on behalf of a proposed class, alleging that company's new policy violated its prior policies, each of which promised to use a consumer's information only for that particular Google product. In addition, the plaintiffs alleged that the new policy violated state and federal consumer privacy rights and statutes.
In December 2012, the court dismissed the plaintiffs' consolidated complaint, concluding that a lack of allegations of concrete harm or statutory or common law violations defeated their standing.
The court in December 2013 found that the plaintiffs' first amended complaint sufficiently pleaded standing, but it still dismissed the complaint on the basis that the plaintiffs didn't plead enough facts to support their claims.
The court agreed with Google that standing based on an alleged risk of future harm doesn't suffice in this case. Although the U.S. Court of Appeals for the Ninth Circuit has held that the improper disclosure of personal data can support standing on the basis of a threat of future harm, that threat must be “credible, real, and immediate, and not merely conjectural or hypothetical,” the district court said.
In this case the alleged threat of future harm is too conjectural, the court said. Unlike in the Ninth Circuit case, Krottner v. Starbucks Corp., 628 F.3d 1139 (9th Cir. 2010), the plaintiffs haven't alleged any criminal activity, the district court said.
But two alleged injuries confer standing, the court concluded: one plaintiff's allegation that he incurred costs by purchasing a new phone after the Google policy change, and decreased battery life as a result of the alleged unauthorized transmission of information when applications are downloaded.
The court dismissed the claims of the “Android Device Switch Subclass,” those who switched to non-Android devices after Google's policy change, under California's Consumer Legal Remedies Act (CLRA), Cal. Civ. Code § 1750, and UCL, Cal. Civ. Code § 17200.
But the latest complaint sufficiently alleged two claims on behalf of the “Android App Disclosure Subclass,” the Android mobile device users who downloaded an Android application: a breach of contract claim and a UCL fraudulent prong claim.
The court also dismissed the plaintiffs' federal Wiretap Act, Stored Communications Act, breach of contract, UCL unfairness prong and intrusion upon seclusion claims.
Gardy & Notis LLP, Grant & Eisenhofer PA and Bursor & Fisher PA served as interim co-lead counsel for the proposed class and subclass. Durie Tangri LLP represented Google.
Full text of the court's opinion is available at http://www.bloomberglaw.com/public/document/In_re_Google_Inc_Privacy_Policy_Litig_No_512cv01382PSG_2014_BL_20.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)