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

Background

The plaintiffs are six minors under age 13 who allege that Google LLC, AdMob Google Inc., and AdMob Inc. collected their personal information through mobile applications without parental consent. The complaint alleges that Google’s Designed for Families program accepted children’s apps after review, including apps from Tiny Lab Productions, while allowing apps without proper age-gating to collect data and support targeted advertising.

The plaintiffs asserted eight causes of action: California unfair competition, common-law intrusion upon seclusion, California unjust enrichment, violation of California’s constitutional privacy right, Florida’s Deceptive and Unfair Trade Practices Act, Florida unjust enrichment, New York’s General Business Law, and New York unjust enrichment. The claims under the California, Florida, and New York consumer-protection statutes were based on alleged violations of the Children’s Online Privacy Protection Act, or COPPA.

Defendants previously moved to dismiss the complaint for failure to state a claim. On June 18, 2024, the court denied that motion. As described in this opinion, the court held that the plaintiffs adequately pleaded continuing harm, that their state-law claims were not preempted by COPPA, and that they adequately pleaded their consumer-protection, privacy, and unjust-enrichment claims.

Request for Immediate Appeal

Defendants moved under 28 U.S.C. § 1292(b) to have the earlier order certified for interlocutory appeal. An interlocutory appeal is an appeal before final judgment. Certification requires a controlling question of law, substantial grounds for disagreement about that question, and a determination that immediate review may materially advance the end of the litigation.

Defendants proposed two questions: (1) what standard applies under COPPA when deciding whether a third-party service provider has actual knowledge that it is collecting information from a child through a primarily child-directed service; and (2) whether the alleged misappropriation of personal information is a loss of money or property sufficient to establish standing under California’s Unfair Competition Law.

COPPA Question

The court held that the proposed COPPA question did not satisfy the certification requirements. Although the general types of conduct that can establish a service provider’s actual knowledge under COPPA could present a controlling legal question, that question was not actually presented by the earlier order. The parties agreed on the relevant COPPA standard. Their dispute instead concerned whether the complaint plausibly alleged that Google had actual knowledge, which required applying established pleading rules to the allegations.

The court also found no substantial ground for disagreement. It rejected defendants’ characterization of the court’s decision and a New Mexico district court decision as conflicting, explaining that the two courts addressed different factual allegations and that both recognized that review of apps could support an inference of actual knowledge. The court further stated that disagreement between two district courts, without more, generally does not justify an interlocutory appeal.

Finally, the court concluded that immediate review would not materially advance the litigation. The plaintiffs alleged that Google conducted an individual review of each app submitted to the Designed for Families program, so an appeal addressing whether knowledge could be attributed across an entire program would not significantly narrow the case.

California Unfair Competition Law Question

The court held that the second proposed question satisfied the first certification requirement because whether personal information constitutes money or property for California Unfair Competition Law standing is a controlling legal question that an appellate court could decide without examining the full record.

However, the court found that the question did not satisfy the requirement of substantial disagreement for interlocutory review. Although district courts had reached different conclusions and the Ninth Circuit had not issued binding precedent on the issue, the court explained that a split among district courts generally is not enough by itself to justify immediate review.

The court also found that an appeal would not materially advance the litigation. The Unfair Competition Law claim was only one of the plaintiffs’ eight claims, and a ruling against standing on that claim would not necessarily prevent the plaintiffs from continuing their other state-law claims. In addition, the California Supreme Court has ultimate authority over the meaning of California law, so a Ninth Circuit decision would not necessarily provide a final resolution of the state-law issue.

Disposition

The court denied defendants’ motion to certify its order denying defendants’ motion to dismiss for interlocutory appeal. This opinion did not grant the requested immediate appeal and did not alter the earlier denial of the motion to dismiss.