A.B., a minor, by and through his guardian JEN TURNER v. GOOGLE LLC

Background

Six minors under age 13 alleged that Google LLC, AdMob Google Inc., and AdMob Inc. collected their personal information through Android mobile apps without parental consent. The complaint alleged that Google’s Designed for Families program accepted or retained apps that were incorrectly labeled as intended for mixed audiences, allowing data collection and targeted advertising through the AdMob software development kit. The plaintiffs asserted claims under the federal Children’s Online Privacy Protection Act (COPPA) as the basis for claims under California’s Unfair Competition Law, common-law intrusion upon seclusion, unjust-enrichment laws, California’s constitutional privacy right, Florida’s Deceptive and Unfair Trade Practices Act, and New York’s General Business Law.

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that the claims were time-barred, that the plaintiffs lacked standing to seek prospective injunctive relief, that COPPA preempted the state-law claims, and that the complaint failed to adequately plead the various causes of action.

Analysis

The court held that the complaint did not establish on its face that the claims were time-barred. Although Google banned the developer Tiny Lab Productions from the Google Play Store in 2018, the plaintiffs alleged that tracking occurred through other apps and continued through 2021 on devices that still contained previously downloaded apps.

The court held that the plaintiffs had standing to seek an injunction requiring defendants to delete, destroy, or sequester information allegedly collected without parental consent. The court noted that the plaintiffs might lack standing to seek prospective changes to Google’s program policies, but concluded that the alleged continuing possession and use of their information supported standing for the requested relief.

The court rejected the defendants’ argument that COPPA preempted the state-law claims. Relying on Ninth Circuit precedent, the court stated that COPPA does not preempt state claims that parallel or prohibit the same conduct. The court found that the plaintiffs adequately alleged Google’s actual knowledge, based on a Berkeley study identifying potentially mischaracterized apps and Google’s alleged review of apps submitted to the Designed for Families program. Because the complaint plausibly alleged an underlying COPPA violation, the court concluded that the related state-law claims were not preempted at this stage.

The court also found that the plaintiffs adequately pleaded their claims. For the California Unfair Competition Law claim, it concluded that the alleged loss of the economic value of personal information was sufficient to plead economic injury and that the alleged COPPA violation supported the claim under the law’s unlawful-practice theory. The court found that the New York and Florida consumer-protection claims were adequately pleaded, including because the complaint identified statements about the safety and child suitability of the apps and alleged use of the apps in those states. The court declined to apply Google’s asserted California choice-of-law provision because the Terms of Service were outside the complaint and were not properly considered on this motion.

For the California privacy claims, the court found that the plaintiffs adequately alleged a protected interest in their personal information, a reasonable expectation of privacy, and a highly offensive intrusion. The court also found that the plaintiffs adequately alleged unjust enrichment because defendants allegedly received and retained benefits from collecting the information and using it for targeted advertising. The court declined to dismiss the Florida and New York unjust-enrichment claims based on Google’s contracts because the court could not consider the defendants’ outside evidence of those contracts on this motion.

Disposition

Judge P. Casey Pitts denied the defendants’ motion to dismiss. The order did not enter a final ruling establishing liability; it held that the complaint’s allegations were sufficient to proceed beyond the pleading stage.